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

 

 

Introduction

 

On 15th January 2005 the new provision on ‘reasonable punishment’, the Children Act 2004 s.58 (Appendix 1), was enforced.  This provision is often referred to as the ‘Lester amendment’ or ‘Lester compromise’ as it was Lord Lester who proposed to neither ban smacking nor fully retain the Victorian defence of ‘reasonable chastisement’.  The defence originates from R v. Hopley[1] where the principal of an Eastbourne school was convicted of the manslaughter of a 14-year-old boy he had ‘badly beaten’ for being obstinate.  Upon direction to the jury, Cockburn LJ stated ‘those with lawful control of a child [such as parents]…may for the purposes of correcting what is evil in the child inflict moderate and reasonable corporal punishment.’[2]  This ‘reasonable corporal punishment’ concept was affirmed by the Children and Young Persons Act 1933 s.1(7) (Appendix 2).  This subsection has been expressly omitted by the Children Act 2004 (CA 2004) s.58, which would suggest removal not limitation of the defence.

 

The UK smacking debate re-erupted following the case of A v. UK[3] which raised the issue of whether the UK’s allowance of the reasonable chastisement defence failed to provide adequate protection of children’s rights under the European Convention of Human Rights 1950 (ECHR 1950) Article 3 (prohibition of torture and inhuman treatment or punishment) and the UN Convention on the Rights of the Child 1989 (UNCRC 1989) Articles 19 (state obligations to protect children from harm) and 37A (worded similarly to ECHR Article 3).  Following this case the UN Committee on the Rights of the Child called for reform of the UK’s laws on reasonable punishment of children (see Chapter 3).  This led to conflict arose between European and national influences:  Whilst Europe advocate a more liberal approach which would remove the reasonable chastisement defence, the British public were wary of progressing towards an effective smacking ban.[4]  The law on reasonable punishment seemed in disarray, but there is great scepticism in saying that the Lester compromise has been enacted to ‘clear things up’.

 

In short, the Lester amendment has removed the reasonable chastisement defence to all charges of ‘assault’ against a child, except in proceedings before the

Magistrates Court
for common assault of a child.[5]  Critically, the amendment also removes the reasonable chastisement defence for charges which carry a maximum sentence of five years imprisonment[6] and retains it for charges carrying a maximum penalty of six months imprisonment.[7]  

 

In order to fully understand the Lester amendment, ‘assault’, ‘battery’ and ‘common assault’ must be defined.  Clear definitions of ‘assault’ and ‘battery’, with distinctions, can be found in case-law.   Following the authority of Collins v. Wilcock: ‘An assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his person; a battery is the actual infliction of unlawful force upon another person.’[8]  This is consistent with the dictionary definitions:  Assault: …causes someone to be put in fear of immediate physical harm…actual physical contact is not necessary.[9]  Battery: …application of physical force to someone without consent.’[10]  However, it seems that Parliament does not fully understand these definitions.  For example, during Parliamentary debate on 5th July 2004, the Earl of Erroll and Lord Thomas disagreed on the whether it was assault or battery which does not necessarily have to involve touching.  If the law-makers cannot distinguish between the charges, what chance do laymen have?  To add to the confusion, it was recognised by the Attorney-General, Lord Goldsmith, during the same debate that what is technically known at law as ‘battery’ is often called ‘assault’ (for this reason, Chapter 1 refers to equality in ‘assault laws’). 

 

For the application of the CA 2004 s.58, the distinction between assault and battery is not as important as the distinction between both these charges and common assault.  The charge of common assault is normally used where the injuries are merely transient, for example, grazes, minor bruising, reddening of the skin, scratches, superficial cuts or a black eye.[11]  However, under the current Crown Prosecution Services charging standards it is possible for these injuries to be charged as assault occasioning actual bodily harm (thus satisfying the CA 2004 s.58(2)(b)) instead of common assault.  This may happen where a case involves serious aggravating features including the vulnerability of the victim, such as when the victim is a child and the accused is the parent.[12]  Therefore, in cases of alleged assaults on children by their parents, the distinction between common assault (and consequently the valid use of reasonable chastisement) and assault occasioning actual bodily harm (with no such defence) is blurred and it is at the discretion of the prosecutor which charge should be applied.  This realisation has caused a stir in the media with headlines reporting “Parents can smack, but not too hard: Peers back compromise that makes it an offence to leave bruise or mark.”[13]  It was well-publicised that the Lester compromise had effectively applied a ‘red mark test’ to whether or not a parent had assaulted a child.  This state of affairs poses numerous problematic questions arise from this:-

-         How long after the alleged assault must a red mark exist constitute assault (especially now that even transient injuries can be assault occasioning actual bodily harm)?  ‘The Times’ offered a vague time span of ‘several hours’.[14]  No other sources have provided guidance on this issue.

-         Who would decide whether the injury is ‘sufficient’?[15]

-         Every allegation of assault, no matter how trivial,[16] would be open to investigation; is this effective use of huge amounts of resources which could be directed at more serious allegations?[17]

-         The issue of different skin-tones has been neglected.  Bruising would show more easily on a white child than a black child; does this mean a black child can be smacked harder?[18]

-         Different levels of child vulnerability have been ignored.  Children with medical conditions, such as brittle-bone disease, are more vulnerable to injury; does this mean these children’s parents should be more vulnerable to prosecution?  Research indicates in 96 cases of UK children with a form of brittle bone disease, on at least one occasion the parents were accused of non-accidental injury and in 15 cases there were case conferences, care proceedings or criminal proceedings.[19]

In his attempt to offer a compromise to settle the smacking debate, Lord Lester has in fact created a ‘fudge’[20] of the debate by “substituting one area of confusion for another.”[21]  The key question is: was the Lester amendment necessary?  This dissertation looks at three of the main arguments in support of the Lester amendment.  Chapter 1 considers whether children should have equality with adults in assault laws; Chapter 2 deals with the argument that the law needs to develop to protect children without becoming a nanny state; and Chapter 3 focuses on the notion that the UK should follow influences from Europe and progress towards a smacking ban.

 

My aim is show that it was unnecessary to implement the Lester amendment, and in doing so analyse how far the Lester Amendment goes towards satisfying these arguments and question whether they justify change rather than preservation of the status quo. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

This chapter looks at the parent-child relationship and the status of children to determine whether children can and should be afforded equal rights to protection in assault laws as adults, or if there is justification for withholding such rights until they come of age.

 

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

A recurrent theme in the ‘smacking debate’ is that children should be given ‘equal rights’ to adults in assault laws.  Liberals, such as Baroness Walmsley, argue this is only achievable by removing the Victorian defence of reasonable chastisement.  This would result in a blanket ban on smacking, which Baroness Walmsley expressly supported[22].  The alternative claim is there already existed the right of children to have equal and sufficient protection from assault,[23] hence the law merely needs to change in order to provide recognition of this.[24]  The underlying question is not can children have equal rights to adults (in assault laws), but rather should they?

 

Should the law, like the state, view a parent smacking his/her child in the exact same light as an adult smacking an adult?  Lord Cameron made reference to criminal law’s requirement to look at intent and how the CA 2004 s.58(2) ignores this requirement. He pointed out that by looking at the context of a ‘smack’, it can be seen that parents “may have to make a quick decision about what is about to happen”.[25]  Therefore, smacking can be an instinct or reaction in response to a child’s actions rather than an intention to cause harm such as in some cases of adult-to-adult brawls.  The intention, or rather the context behind a smack, is as important as the discussion as to whether children are/should be of equal status to adults regarding protection in assault laws.

 

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

1.2(a)  Different relationships, different contexts

Granting equality to incomparable situations would defy logic.  For this reason, one must consider whether a parent-child smack is comparable to an adult-adult smack before concluding whether a child should have the same rights to protection as adults are entitled to in assault laws in all situations (including a smack from their parent).  It would be naïve of the law to take all smacks, whether they be adult-to-adult or parent-to-child, at face-value and group them all as ‘simply a smack’.

 

Lord Lester contends that “the context is different when a parent smacks their child from when an adult smacks another adult.  It is important for the law to recognise this common-sense difference.”[26]  I agree with Lord Lester on this point and submit that far too often anti-smacking campaigners view parental smacking only in the context of inflicting pain.  For instance, the ‘Children Are Unbeatable Alliance’ used children picketing with signs and t-shirts reading ‘Don’t smack, it hurts’ at the forefront of their rallies.  The Law needs to be wary of ignoring parental smacking in the contexts of i) parental discipline and ii) protection of children.

 

1.2(a)(i)  Parental discipline

The context of parental discipline embraces the unique relationship a parent has with their child.  Since the enactment of the Children Act 1989 s.3 there has been a shift from basing the parent-child relationship on the rights a parent has over his/her child[27] to recognising instead a parent owes responsibilities to his/her child.  Prior to this shift a parent could effectively advocate s/he had a right to discipline his/her child.[28]  It is harder, yet not impossible, to make the same claim when the parent appears to owe responsibilities to his/her child rather than have rights over the child.  The Children Act 1989 s.3 states that ‘[for the purposes of the Act] ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’  The fact that the first word used in the description is rights suggests it is incorrect to insinuate parents have no rights at all.[29]  Therefore, the right to discipline can arguably be interpreted as falling within the definition of ‘parental responsibility’.

 

The 1989 Act does not provide a list of specific responsibilities owed to a child by their parent.  This in itself seems to indicate that the law recognises the relationship between a parent and his/her child is unique from any other.  In contrast, the government does not hold back in identifying the duties and responsibilities local authorities owe to children under Schedule 2 of the 1989 Act.  A much more ‘hands-off approach’ has been used with regards to the parent-child relationship, allowing for the maintenance of parents’ freedom to decide what responsibilities they owe to their children.

 

Does ‘common sense’ not suggest parents should have a responsibility to teach their children right from wrong (i.e. to discipline their children)?  Pringle suggests children have a right to become responsible adults and that without adequate parental care there is little chance of fulfilment of this right[30].  The concurrent assumption is the ‘responsible adult’ knows right from wrong.  Earl Howe draws a distinction in Parliamentary debate that smacking a child to teach right from wrong is not the same thing as child abuse.[31]  Anti-smacking campaigners believe children can be taught right from wrong by reasoning with them instead of smacking them.  This belief does not consider the level of understanding children have as to how serious ‘wrong behaviour’ is when they are merely told it is wrong.  Research into communication has shown that only 7% of all communication is verbal[32], thus all actions have a context of communicating a message:  why should smacking not be recognised also for conveying a message?  It has been argued that physical punishment is the only ‘language’ a child can understand[33] and for this reason smacking is a tool for communicating right from wrong to a child.  Thus discipline provides the context of the smack.

 

Where a smack is in the context of disciplining one’s own child, it cannot be made comparable to an adult hitting another adult.  A parent has a responsibility to discipline his/her child; a responsibility which clearly does not exist between two adults.

 

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

The classic example of a smack in this context is the ‘child running into the road’ scenario.  As is discussed above, a smack may be the most effective ‘language’ for a parent to use in this scenario.  Small children may not always appreciate the degree of harm that running into the road can cause.  The likelihood of a small child digesting a parent’s attempt to verbally reason with him/her about the dangers is minimal compared to the likelihood of the same child understanding a smack meant s/he should not run into the road.  Indeed, reasoning does not work with many adults: how many adults can honestly say they avidly listen to the flight attendant’s emergency procedures talk at the beginning of a flight?  How many adults are actually thinking of the first thing they want to do when they arrive at their final destination instead?    The expectation that children will pay a level of attention which many adults cannot sustain is unrealistic.

 

Lord Lester asserted:  ‘A smack by a loving and anxious parent whose child has run into the road for the fifth time, despite repeated warnings, is not to be equated with a minor act of violence against an adult.  Both involve battery but the context is different.’[34] This comment rightly gives consideration to instances when non-physical warnings to a child are ineffective.  A parent has a responsibility, in addition to a natural instinct, to protect his/her child by any means possible.  Such a responsibility does not exist in the context of an adult-adult relationship.  An action with the intention of preventing harm should not be viewed in the context of intending to cause harm.

 

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

It has been accepted at common law that the context of a smack allegedly occasioning ‘assault’ cannot be overlooked in considering whether or not the smack was unreasonable.[35]  Thus the importance of establishing the context behind smacking a child has been recognised on some level by the law.

 

In A v. UK,[36] the European Court of Human Rights held that to prove whether physical chastisement of a child by the parent has reached a level breaching the ECHR Article 3 (prohibition of torture or inhuman/degrading treatment/punishment), four factors need to be taken into consideration: first, the nature and context of the ‘ill-treatment’; secondly, the duration; thirdly, the physical and mental effects; and finally, in some cases, the victim’s age, gender and state of health.[37]   Three years later in R v. H[38] the Court of Appeal held that judges should direct juries in accordance with these factors (with the additional consideration of the defendant’s reason for administering the punishment) in deciding whether a parent has reasonably chastised his/her child.

 

There is evidence to suggest the Government has recognised this test, which includes looking at the context behind the smack, and steps had been taken to bring legislation in line with the Common Law.  This was expressed in the January 2000 Consultation Paper ‘Protecting Children, Supporting Parents: A Consultation Document on the Physical Punishment of Children’, where it was reiterated that on deciding whether or not reasonable chastisement was an admissible defence a court should always have regard for the four factors mentioned in A v. UK.  This is looked at in more detail in Chapter 3.

 

If the law appreciates the importance of ascertaining, understanding and taking account of the contexts behind smacks administered by parents to their children, it should also realise these contexts are special to the unique relationship between a parent and his/her child and do not exist in the normal adult-adult relationship.[39]  With this in mind, it is suggested that ‘minor assaults’ in a parent-child relationship and an adult-adult relationship cannot be compared.

 

1.3.  The status of children

Children have come a long way from the “wholly subservient and dependent” being that Holt described to be “seen by older people as a mixture of expensive nuisance, slave and super-pet.”[40]  Yet it is still questionable whether the status of children today can conceivably be equal to the status of adults.  Liberals such as Baroness Walmsley,[41] who claims ‘giving children equal protection to that enjoyed by adults under laws on assault is a policy whose time has come’, insist that child status should be equivalent to adult status.

A popular area upon which commentators have debated the equality of child and adult status is in the right to autonomy.  Eekelaar describes autonomy as “the most dangerous but precious of rights: the right to make their own mistakes.”[42]  The justification for not allowing children to exercise the full right to autonomy is to maximise their autonomy in their adult life.[43]  The choices one makes at childhood would have an impact on the choices available to one as an adult.  For example, a child may choose to eat McDonalds everyday which would affect his/her opportunity of a healthy adult lifestyle.  From this justification it can be construed that adult status rightly holds greater importance and value than child status:  autonomy of children must be limited for the sake of their future adult autonomy.

 

The question of a child’s autonomy was approached at common law in Re Angela Roddy (A Minor),[44] where the issue was whether children could exercise for themselves the rights they have under the ECHR.  Re Roddy specifically concerned ECHR Article 10 (freedom of expression) and Article 8 (right to respect for private and family life). This drew attention to whether children’s rights and the way children see them should be taken seriously or if children should be treated as ‘largely passive objects.’[45]  There was no clear yes or no answer reached in the case which followed the Gillick[46] principle: ‘most wise parents relax their control gradually as the child develops…[so the] degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence’.[47]  The case of Gillick itself saw the contention between rights of a child and of her parent on the issue of consent to receiving medical advice and treatment.  The case introduced a more liberal view of child status and shifted the boundaries between parents’ rights and children’s rights in accordance with the intellectual maturity of the child.  Following Gillick’s precedent, Re Roddy suggests children can acquire equivalent rights to adults but first the court must look to their age, understanding and maturity.  Whilst this logic applied to the facts of Re Roddy it would be absurd to apply the same to assault laws.  The law cannot assert it is a true reflection of ‘human development and social change’[48] to give children who have reached a certain age, understanding and maturity equal rights to adults in assault laws and leave younger children of a lower understanding and maturity susceptible to ‘assaults’ protected by the reasonable chastisement defence.  On the other hand, it would be equally impractical to allow all children equal rights to adults in assault laws, as not every child would have the understanding and maturity to exercise such rights, thus contravening the Gillick principle. 

 

No matter how intellectually mature or sufficient a child’s knowledge of the circumstances surrounding them is, a child is still not fully developed mentally (or physically).  One only has to look to the education system to see this; if a child is considered to have reached full mental development once s/he appears ‘mature enough’, it would not make sense to impose compulsory education on every child under 16.  Some commentators, like Purdy[49], go as far as to claim children are irrational in comparison to adults.  According to Purdy, children’s “alleged irrationality justifies protecting them in ways that also limit their freedom”[50] and according to O’Neill “their fundamental remedy is to grow up.”[51]  Children do not have equal mental capacity to adults, so it would be illogical to give them equal status and rights.  Another commentator, Burrows, drew attention to the classic definition of a ‘right’ as ‘the freedom to act without interference, according to one’s conscience’.[52]  Therefore, conferring a right to a child serves no purpose if by nature children lack the experience and mental capacity to act upon their right.[53]  Children are simply not mentally equipped to exercise rights equal to those afforded to adults.

 

With equal rights come equal responsibilities.  If children are to receive equal protection to adults in assault laws, by virtue of the same arguments that instated equal protection children should be equally responsible for actions classified as ‘assault’.  Will children be able to take their classmates as well as their parents to court for smacking?  Children under the age of 10 escape criminal responsibility because it is believed they are too young to know right from wrong.  A legal system that identifies young perpetrators as too young to know it is ‘wrong’ to smack and young victims as old enough to know it is ‘wrong’ to smack, is far from being a fair one.   It tips the balance and provides better protection for children than adults.


1.4.  Conclusion

After analysing the contexts behind smacking, the statuses of children and adults, and the possible outcomes of giving children equal rights to protection as adults in assault laws, it is submitted that such equality is unworkable.  The contexts behind parents smacking their children are incomparable with the contexts of adults smacking other adults.  The parent-child relationship places responsibilities on parents which they do not owe other adults, thus even the relationships between a parent and child and an adult and another adult are incomparable.  The status of children should not be seen as simply inferior to that of an adult.  It should, however, be noted that children have a dependent status on adults which they eventually grow out of in a process leading to equal status upon adulthood.

 

It is interesting to note a key question which has only been mentioned once in Parliamentary debates:  “What do we mean by the current adult law?”[54]  Baroness Walmsley drew attention to this and made the point of if she were to smack Lady Sharp (sat next to her) on the arm, it would be an assault but she would not end up in court being charged for it.  She went on to declare “that is the way the adult law operates, and that is how we expect the law to operate for children as well.  We are asking for equality – no more and no less.”[55]  If that is the definition of ‘equality with adults in assault laws for children’, why change the law at all?  The defence of reasonable chastisement achieves the same result as that mentioned by Baroness Walmsley; a smack on the arm, albeit an ‘assault’, would not lead to being charged with assault in court were it considered to be reasonable.  The absence of case law regarding the charging of parents in court for ‘assaulting’ their child by smacking their arm in such a way indicates this to be unchanged for parent-child smacks.

It seems the equality debate is really a reflection of the rights-based society the
UK is becoming.  According to Archard the rights-based society is “a cold, hollow one, drained of the sentiments of mutual care and love” where individuals assert their rights against each other.[56]  With so much emphasis on asserting ‘equal rights’ for children the fundamental basic, that a family unit is one of love and nurture, is ignored.  The rights-based society is contrary to the UNCRC preamble: ‘a child should grow up in a family environment, in an atmosphere of happiness, love and understanding.’[57]  The ‘family environment’ is not one bound by legal rules, of A’s rights against B’s rights, that is a court environment.

 

Turning more specifically to whether Lord Lester’s compromise gives children equal rights to protection as adults in assault laws, it is submitted that the Lester amendment has merely confused the status of children in assault laws rather than confer equality to children.  ‘Children’s rights are not promoted if adults merely deliver a rough approximation of what children need, based on their own prejudices.’[58]  The compromise Lord Lester offered and the government accepted was ‘a rough approximation’. It is the government’s opinion that children will benefit from the reform which will eventually escalate to a ban on smacking.  As discussed in this chapter, it is suggested that this government rough approximation will do nothing to benefit the well-being of children. 

 

 

 

  1. The Nanny State or ‘Working in Partnership with Parents’

 

This chapter looks at the main political concern (fear of the nanny state) for opting for a ‘compromise’ instead of a ban or preservation of status quo.  By exploring the definition of ‘nanny state’ and the ideology behind it, I aim to show that the Lester amendment does not fully extinguish the threat of the nanny state.

 

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

In the 1980s, Bernard Levin expressed his frustration over ‘the erosion of civil liberties disguised as benevolent government’ by coining the term ‘nanny state’.[59]  Twenty years later the media adopted vigorous use of this term by reporting on the political concerns relating to ‘nanny state’ accusations in the events leading up to the enactment of the Lester amendment.[60]  Following the introduction of the Lester amendment, ‘The Telegraph’ reported on concerns the Labour Party had over possible accusations of being a nanny state in the run-up to a general election.[61]  Once the Children Bill 2004 was given royal assent (with the Lester amendment included), ‘The Telegraph’ produced another article stating:  “The accusation of ‘nannying’ is one that has alarmed Labour strategists as research shows it to be a potent gripe among voters.”[62]

 

The alternative to the ‘nanny state’ offered by members of the House of Lords, such as Baroness Walmsley and Lord Laming, is for the state to ‘work constructively in partnership with parents / families.’[63]  Put into practice would ‘constructive partnership’ differ enough from a nanny state to constitute an alternative?  One could construe the terms ‘nanny state’ and ‘constructive partnership’ as the same idea expressed in two languages; the Parliamentary use of ‘working in partnership with parents’ translates to ‘progressing towards a nanny state.’

2.2  Ideology: State Paternalism

It is clear that the government’s main objective is to place priority on the interests of the child.  This keeps the law within the ambit of the Children Act 1989 s.1 and the main intention of the Children Act 2004, to recognise the paramount importance of the welfare of each child.  The issue is how far the government will go to achieve this objective.  Will the interests of the parent become subordinate to the interests of the child?  This idea of placing greater importance on the interests of children is acquiescent with the ideology of ‘state paternalism’.

 

It follows naturally that should the child’s interests be given high priority, the rights and liberties of the parent are subjugated.  The welfare of the child is paramount; if the parents’ interests stand in the way of meeting this end it would be suffice and acceptable in the state’s view to subjugate the parents’ interests.  The interests of the child are invariably considered to be the public interest according to Baroness Finlay,[64] therefore under the state paternalism model ensuring the welfare of the child is the responsibility of adults acting not as parents, but as ‘agents of the state’.[65]  Parenthood is no longer a reward but a duty to the state.  The paternalist state is the ‘nanny state’.

The problem with state paternalism is that every child, no matter how loving their home is, is automatically seen as child needing to be rescued.  Depicting children as dependent and needy is the state’s justification for intervening as the children’s ‘hero’.[66]  The state takes on the parental duty (or paternal role) of protecting children.  The paternalist state is meant to be neutral and wise, rather than controlling and oppressive.  This would be true if society was entirely equal with no class distinctions and variations of cultural attitudes.  State judgement is not universal; the state decision-makers are those with most influence: the professionals, the courts and the ‘experts’.  There is no place for parent autonomy in the paternalist state. 

 

Pringle supports the paternalist state claiming: ‘society suffered from misplaced faith in blood-ties and over-romanticised picture of parenthood…children should be seen rather as only on temporary loan to parents [not possessions]...Bringing up children is too important a task to be left entirely to those parents who are patently in need of support and guidance.’[67]  In response to this argument, what makes the state more qualified than parents to determine how a child should be brought up?  The state cannot dictate how parents choose to raise their children on a daily basis like it dictates how people should behave at work.  Setting guidelines on how to perform at work improves the state’s economy, if the state sets guidelines on how to parent it implies that children are owned by the state in the same way the economy is.  This contradicts the principle behind the Children Act 1989 that children are not possessions.[68]  If children are treated as property, they are at the mercy of the ‘owner’ who may not always be ‘prepared to facilitate a child’s growth towards self-determination and independence’, this is the point made by Montgomery,[69] (in the context of a parent’s possession of a child).

 

2.2(a)  State Paternalism and the Smacking Debate

Dingwall et al[70] concluded that state paternalism applied a ‘strict liability approach’ to assessing child abuse.  Nearly all injuries to children are perceived as ‘unequivocal evidence of neglect or abuse and of deficiency in the parents’.[71]  Only clinical evidence has relevance in assessing abuse, not the social evidence.  The impact this has on smacking, is that under the paternalist state regime, any physical evidence of a child having been smacked could equate to an assumption that the parent has abused the child.  There is no regard for factors such as the child’s behaviour and the environment the child is being brought up in.  One could argue the Lester amendment is similar to state paternalism in that it relies on physical evidence (such as reddening of the skin) to indicate abuse of a child by their parent, rather than considering why the alleged assault happened.

 

State paternalism attempts to justify ‘nannying’ by broadening the concept of abuse.[72]  The Lester amendment effectively does this.  The concept of unreasonable punishment of children has been broadened to include assault and battery (except common assault), which inevitably leads to more state intervention in order to police this broader concept.  The test for whether assault or battery has occurred is whether or not there is a red mark left on the child; Professor Leon Polney (University of Nottingham, Community Paediatrics) raises the issue of who would judge whether a smack has left a mark.[73]  Lord Laming suggests the police will by investigating every child assault allegation “however trivial.”[74]  Thus the operation of the Lester amendment involves greater intervention by state bodies such as the police.  One could argue this is misuse of state resources on what is effectively ‘nannying’.[75]

 

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

How is the Lester ‘compromise’ preferable to an outright ban?  There is a slight political difference between the two which made the Lester amendment safer for the government.  The Department of Health concluded that any legislative attempts to outlaw physical punishment of children is a ‘heavy-handed intrusion into family law’[76] and would ‘victimise parents unfairly and compromise public confidence in the system.’[77]  Therefore a ban carries the risk of ‘nanny state’ accusations.  By contrast, the Lester compromise, is not overtly a ‘nanny state’ and thus retains some public confidence in the government, whilst discreetly stepping towards the nanny state.  If the government truly wanted to avoid the nanny state, status quo should have been preserved as this would not have required heavier state intervention. 

 

2.4  Conclusion

Returning to Levin’s definition of the ‘nanny state’ at the beginning of this chapter, I submit that the Lester amendment satisfies the definition.  The civil liberties of parents in compliance with the ECHR Article 8 (the right to a private family life) have been eroded by a compromise proclaiming to protect children whilst not intervening with how parents wish to bring up their children.  The benevolent government does not intrude on the parent-child relationship, however, it does protect people from crime.  By broadening the scope of criminal offences, the Lester amendment disguises intrusion on how parents wish to bring up their children as protection of children from becoming ‘victims of crime’.  This disguise is reflective of the state paternalism principle of justifying state intervention (or the nanny state) by broadening the scope of abuse. 

 

In the next chapter, Sweden is looked at as an example of a country where the government has intervened by banning smacking.  It is relevant to mention here that in Sweden cases where state intervention has led to prosecution of parents for smacking are hard to prove because they appear alongside cases of assault and battery.[78]  The Lester amendment endeavours to do the same, thus attempting to condone the nanny state.  The political pressure to not appear a ‘nanny state’ led to the enactment of the Lester amendment, but appearances are deceiving.  ‘Compromise’ and ‘constructive partnership’ are the same as ‘nanny state’ in essence, the only true distinction is ‘compromise’ and ‘constructive partnership’ are politically safer.  The people fear living in a nanny state, the government fears appearing to be a nanny state.  It is my submission that the wrong fear (the government’s fear) has been addressed by enacting the Lester amendment.  Had the people’s fear been addressed instead, status quo would have been the safest option.

 

 

3. The European Influence

 

This chapter looks at two points of influence from Europe.  First, the focus is Sweden and how a smacking ban has worked (or not); and the second focus is human rights[79] and the effects smacking bans have on the human rights of all parties concerned.

3.1.
Sweden: A beckoning force?

Subsequent to its 1979 ban on smacking, one could say Sweden has become a Liberationist icon.  All too often one hears of the great success of the Swedish ban on smacking and how it has led the way for 13 other European countries: Austria (1989), Croatia (1999), Cyprus (1994), Denmark (1997), Finland (1993), Germany (2000), Latvia (1998), Norway (1987), Italy (1996), Israel (2000), Romania (2005), Ukraine (2000) and Iceland (2003).[80]   Seldom is it heard that Sweden suffered some side-effects from the ban.

 

The recurring arguments in favour of following Sweden are: a) the effectiveness of the non-punitive approach which protects children, supports parents and educates both;[81] b) the low mortality rates linked to child abuse in Sweden[82]; and c) statistics inferring a decrease in assault and battery of children behind closed doors.[83]  This chapter seeks to show these arguments when explored in depth suggest the Swedish ban on smacking is not all it boasts to be and the UK government should show less haste in following suit.

 

It is concerning that throughout Parliamentary debates the above arguments were put forward by the Lords and subsequent arguments against a ban were not.  Among arguments idolising Sweden’s ban were those of Baroness Walmsley and Lord Harrison.  Baroness Walmsley emphasised on looking ‘at the sensible way in which similar reforms have been introduced to protect children and support parents in other European countries’[84] to provide a modern legal framework.  In a later debate, she added ‘[in Sweden] child mortality from violence is almost nil…Children do not run wild...youth crime has not risen in the past 20years…[and there is] no malicious private prosecutions for trivial acts,…,the authorities channel parents into help, not prison.’[85] Furthermore, Lord Harrison claimed there are 1-2 child deaths (due to physical abuse) per week in the UK and only four (recorded) similar deaths in Sweden from 1979-2000.[86] 

 

Professor Larzelere’s article ‘Sweden’s smacking ban: more harm than good’[87] uses the same data as pro-Swedish ban commentator, Durrant[88], to demonstrate four areas revealing failure of the smack ban culture that threatens to spread across Europe.  First, he contends that attitudes and practices relating to ‘corporal punishment’ of children have not changed since the 1979 ban.[89]  Secondly, recorded physical abuse has increased.[90]  Thirdly, numbers of child perpetrators of assault crimes against children are higher in the generation brought up with a smacking ban.[91]  Finally, the ‘support’ offered to parents is more like intrusion forced upon parents.[92]  These four areas will be expanded upon to illustrate future problems overlooked by the UK government when implementing an amendment which looks likely to eventually lead to an outright ban on smacking.

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

The crux of the alleged ‘success’ of Sweden’s ban is the educative nature of the legislation.  Through educating both parents and children alike about the ‘evils’ of physical chastisement of children, Sweden created a non-smack culture which was prepared for a ban.  This culture is by no means an indicator that the ban dramatically changed the attitudes and practices of parents.  It is more convincing to say a cultural change embracing new attitudes without a ban in operation made the ban easier to accept, but not necessary or effective. 

 

Larzelere used statistics obtained between 1965 and 1994 to illustrate the insignificant change post-ban.[93]  Participants in a Swedish national survey were asked if they agreed with the following statement: “a child has to be given corporal punishment from time-to-time.”  In 1965, 53% agreed; one year before the ban was introduced this figure fell to 26% and two years into the ban the percentage was the same.  A similar statement was also contemplated by respondents: “mild or moderate physical punishment is sometimes necessary as a childrearing method, but should be carefully considered and not the result of anger.”  In 1978 (pre-ban) 26% partly or fully agreed with this statement.  Fifteen years after the ban this statistic rose by 8%.  These statistics indicate attitudes towards smacking changed more dramatically and were more negative towards smacking before the ban, not after.   In addition to this data, statistics on actual use of physical punishment on children showed only a 2% decrease (by fathers) and a 5% decrease (by mothers) between the first generation brought up under the ban and the generation before it.  I submit that much of the ‘success’ in changes to attitudes and practices in childrearing in Sweden were present before the ban, but this has been overlooked by supporters of the ban.

However, there was some post-ban change with the decreased frequency of physical punishment indicating change in the practices.  However, this change is negative.  Larzelere observed: “parents become less inclined to use mild physical punishment when in control but more likely to use it when ‘upset enough’.”[94]  Under a ban, parents do not smack their children after early signs of misbehaviour, instead they allow bad behaviour to build up to a level where most parents would lose control.  The effect of this can be that smacking, albeit less frequent, is done with greater force and less control.  Smacking in the context of protection and discipline becomes the type of smacking parents avoid under a ban, but smacking out of anger and frustration remains.  It has been feared that this would be the effect of the new ‘partial-ban’[95] implemented in the UK; Mr. Rob Southey (head of King’s School, The Meadows) believes ‘parents who smack their children out of anger will continue to do it anyway.  The majority who discipline their children in a perfectly normal way,…, including smacking, will end up fearful.’[96]

 

It appears ‘fear’ is the main attitude change since the implementation of Sweden’s ban.  Ruby Harrold-Claesson, President of the Nordic Committee of Human Rights and defence lawyer to many Swedish parents separated from their children as a result of the ban, claims ‘at present parents in Sweden are afraid to discipline their children.’[97]  This is a far cry from the ‘positive support’ system supporters of a ban claim parents have.

 

Relating to the issues raised in Chapter 2, the ban in Sweden shows signs of state intrusion into the family disguised as ‘support’.  Upon presentation to the international arena in 1979, Sweden’s ban was stated to “not represent an extension of the punishable area”[98]; words eerily similar to Baroness Walmsley’s statement ‘that removing the [reasonable chastisement] defence is one thing, but creating an offence is another’[99] and UK government claims that indeed the latter has not happened.  The over-utilisation of social services in the administration of the ban in Sweden is arguably punitive enough to contradict the emphasis on ‘support’. 

 

The ‘support’ offered to parents in Sweden comes in two forms: voluntary or compulsory social services.  The former appears to be the ‘lesser of two evils’ with only the possibility of the child being taken away from home and greater chance of reunion and visits.  The alternative is a certainty that the child will be separated from the parent(s) with minimal visits under close supervision.  Statistics showed compulsory social services increased 7% between 1982 and 1995, compared with the 54% new cases of voluntary social services in 1982 and 37% new cases in 1995.[100]  This could indicate that parents succumbed to voluntary social services through fear of being subjected to the compulsory alternative.  State control over ‘how to parent’ has reached a stage where even the parents themselves doubt their abilities; is this what will become of the UK?

 

3.1(b)  Mortality rates linked to child abuse

Sweden notoriously has low mortality rates linked to child abuse, but much like the observations made on attitudes and practices of ‘corporal punishment of children’ mortality rates of this category were low before and after the ban.  Also, the difference compared to other countries has been exaggerated.  The child abuse death rates in four countries (including Sweden) with bans and 22 countries without bans are almost indistinguishable: 0.6 per 100,000 children in the countries with bans and 0.7 per 100,000 children in those without (statistics on actual numbers of death were not reported in the findings).[101]  UNICEF data indicated Sweden as the only country with a smacking ban out of the five countries with the lowest rates of child abuse deaths.[102] 

 

Baroness Walmsley and Lord Harrison, by supporting smacking bans with reference to Sweden’s mortality rates[103] failed to note mortality rates indicate only the extreme cases of child abuse.  How often does one hear of ‘death by a smack’?  Mortality rates are not the same as rates of supposed harm by smacking.

 

 

3.1 (c)  Statistics on assaults:

3.1 (c)(i) Assaults on children

Since the ban was implemented in Sweden there has been a 489% increase in criminal records of assaults on children by relatives.[104]  It is not stated what proportion of these relatives are parents, but given that the phenomenal increase came after it was made unlawful for parents to smack their children one can assume alleged parental assaults contributed significantly to the 489% increase.  There are two ways of looking at this finding: the first, is as evidence the ban has brought ‘justice’ to a large number of children suffering behind closed doors; or that the ban has unjustly criminalised ‘normal’ parents.  It is submitted that the latter is more plausible. 

 

Such an increase is more attributable to reporting practices than a surge in ‘victims’ suddenly empowered by new legislation to come forward.  Harrold-Claesson points out there is a “rise in cases where children have accused their parents of ill-treatment without appreciating the consequences of their actions”.[105]  Similarly another Swedish lawyer, Lennart Hane, describes the child as “the betrayer of his own parents, because he does not understand that he is running the risk of being separated from his parents and siblings.”[106] With the increased awareness of smacking as a form of assault in Sweden is an increased lack of awareness of the consequences of reporting all minor offences.  The scope of what is ‘criminal’ contributes more to the statistics than actual misgivings do, which contradicts the notion of a non-punitive measure.

3.1 (c)(ii) Assaults by children

‘The abused are more likely to become abusers’: a phrase often associated with why people abuse[107].  Ironically, Sweden’s main perpetrators of assault crimes against 7-14 year-olds are the under-15 year olds who have been brought up under the ban.  There is an overwhelming 519% increase in assault crimes committed by under-15s born after the ban compared to the generation before.[108]  The future of anti-smacking looks bleak for Sweden, with mixed messages having been conveyed to the ‘children of the ban’.  Whilst these children appear to have grasped the idea that it is ‘wrong’ for an adult to strike out at them, the statistics on young perpetrators of assault suggest they only see it as wrong when it is an adult administering the assault. 

 

The implementation of the Lester compromise has already instilled fears of a similar outcome in the UK.  Only the confusion is not just over who can be charged for assault, but what types of assault are chargeable.  The message the compromise sends out to children is that “some forms of assault are okay” according to Children’s Society director, Kathy Evans.[109]  Adults may face confusion over what constitutes assault under the Lester amendment, what chance do children have of knowing any better?

3.2. The effects of smacking bans on Human Rights

The wording of the UNCRC Article 37A: ‘no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment’ echoes the ECHR Article 3: ‘no-one shall be subjected to torture or to inhuman or degrading treatment or punishment.’  There has been pressure on the UK government to do more to fulfil its positive obligation to comply with children’s rights under ECHR Article 3.  In A v. UK[110], the acquittal of a man (who used a garden cane to beat his step-son) on the defence of reasonable chastisement was found by the European Court of Human Rights to be a violation of Article 3.  The earlier success of the reasonable chastisement defence in this case indicated failure by the UK government to provide adequate protection to the child.

 

Reports by the UN Committee on the Rights of the Child also pressed for more adequate protection of children in the UK.  In 1995, the Committee commented on: ‘the imprecise nature of the expression reasonable chastisement and the risk of it being interpreted in a ‘subjective and arbitrary manner’ contrary to the provisions of the Convention on the Rights of the Child.’[111] The previous year saw a more specific criticism of the UK’s (lack of) compliance with the UNCRC, drawing particular attention to the finding that “the parental right to administer (even) reasonable physical punishment was inconsistent with [UNCRC] Article 19.”[112]  Barton suggests that Article 19 is worded more severely than Article 37A.[113]  This is true with regards to the obligations it imposes on the state as Article 19 expressly says: ‘States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation…while in the care of parent(s).’

 

Despite the effect of  A v. UK and its test which took account of the nature and context of ill-treatment, the duration, any physical / mental effects and the victim’s age, sex and state of health, the Committee continued to find the UK government out of sync with the UNCRC.  On 4th October 2002, the Committee declared it ‘deeply regrets that [the UK] persists in retaining the defence of ‘reasonable chastisement’ and has taken no action towards prohibiting all corporal punishment of children in the family.”[114]

 

Lord Lester claims his compromise is a ‘proportionate response’ to protect children in the ways required by the UNCRC and ECHR.[115] It is my submission, that whilst smacking bans and indeed the Lester compromise appear to protect the human rights of children under ECHR Article 3 and the UNCRC Article 37A, they in fact contravene the human rights of parents to a fair trial (ECHR Article 6).  Under the ECHR Article 6(2) everyone is entitled to a presumption of innocence until proven guilty at law.  The authorities in Sweden start out with the assumption that ‘the family is principally bad’[116] and Harrold-Claesson, (who opposes introducing a UK smacking ban), gives the example of a mother she defended being accused of having ‘a sick symbiotic relationship with her daughter’ (meaning she loved her)[117].  Given this evidence of the situation in Sweden and considering that the Lester amendment is an initial step towards a similar smacking ban, it appears that, contrary to ECHR Article 6(2), parents are presumed guilty until proven innocent (a view supported by Harrold-Claesson).[118]

 

3.3 Conclusion

When I asked if she believed the UK has moved a step closer to a smacking ban with the Lester amendment, Harrold-Claesson replied “yes.”[119]  She also gave examples of cases where families have been divided in Sweden and states “that’s the scenario that parents in Britain are facing”.[120]  The situation in Sweden with its increased recorded assaults, young perpetrators of assault, high numbers of children in care and parental fear of disciplining one’s own child should be view by the UK government as a clear warning sign, not as a shining example as it appears to have been.  The UK government has only looked through liberationist eyes, when it should have taken a step back and looked at Sweden’s ban from a pragmatist’s viewpoint.

 

With regards to the pressure exerted on the UK to remove the reasonable chastisement defence and effectively create a ban on smacking, it is also my submission that there is too much emphasis on the children’s liberationist perspective and not enough attention paid to the wider picture.  There is no logic behind ‘liberating’ children with fulfilment of their ‘rights’ under the ECHR and UNCRC if it will ultimately result in the destruction of the family environment because parents are losing their right to fair trials.  The Children Act 1989 may have recognised that parents no longer have rights over their children, but this is not to say they do not have rights at all (see Chapter 1).  The situation in Sweden, according to Harrold-Claesson, is ‘the system had decided to create a new category of criminals: loving, caring parents’[121] and ‘a good part of the Swedish people will be transformed into criminals.’[122]  No amount of pressure from Europe should justify the UK government enforcing a law that means (even risking) criminalising parents and therefore breaking up families.  Yet under the Lester amendment, parents charged with assault now have less defence against being separated from their children.  It is hard to see how this improves parenting skills or benefits the welfare of children, who stand to lose the family environment they are accustomed to.  With regards to the child’s welfare the Children Act 1989 s.1(3)(c) requires consideration of the “likely effects on [the child] of any change in his circumstances.”  Increasing the chances of separating a child from his parent (thus changing his circumstances) contravenes this provision.  Stability and status quo are extremely important to the continuity of a child’s healthy development.[123]

 

 

 

Conclusion

‘My amendment seeks to achieve greater legal certainty by clarifying the legal framework protecting children from parental violence and abuse.’[124]  These were Lord Lester’s own words when he introduced the compromise which is now the Children Act 2004 s.58.  It is my submission that Lord Lester has failed to achieve his proclaimed goal of certainty. 

 

With disregard to the contexts behind parents smacking their children and focus only on the ‘rights’ of both parties, the Lester amendment has distorted the parent-child relationship, replacing the ‘family environment of happiness, love and understanding’[125] with a legal arena which pits the rights of children against the rights of their parents.  It also appears the Lester amendment has made the rights of the parents second to the rights of the child.   The omission of the Children and Young Persons Act 1933 s.1(7) (Appendix 2)[126] is an example of a parental right succumbing to children’s rights.  This also sends out a confusing message to the public, as Harrold-Claesson points out ‘Tony Blair has said that he will never pass a law that takes away parents’ rights to discipline their children, yet, this law has been passed.’[127] 

 

It is also my submission that the enactment of a ‘compromise’ was strongly influenced by political issues, rather than questions of what is best for those affected by the law on reasonable punishment.  The real parties in mind when passing the law were the political parties not the families, the parents and/or the children.  The Liberals (like Baroness Walmsley) campaigned for a ban on smacking and the Conservatives (like Julia Kirkbride) fought to preserve the status quo.  The two extreme sides of the smacking debate had been taken, so what was left for Labour, the party in power?  With general elections just around the corner, it would appear weak for the Labour party to suggest the policies echoing those of other parties, especially the main political contender, the Conservative party.  Thus, the Lester amendment appeared the most ideal proposal: it neither supported the Liberal crusade for a ban nor the Conservative aim of preserving the status quo.  Instead it took a seemingly midway point, offering the electorate (in particular the ‘fence-sitters’ on the smacking debate) a new alternative.  However, upon closer examination of the Lester amendment there are clear signs of progression towards the Liberal ideal of a smacking ban.  By not removing the defence of reasonable chastisement completely, the Labour government avoided accusations of becoming a nanny state, which (as Chapter 2 draws attention to) is damaging to public confidence.  It almost escapes the public’s eye that the injuries amounting to the only charge where reasonable chastisement remains valid (common assault) can, at the discretion of the prosecutor, be charged as an assault under subsection(2)(b) of the new provisions (assault occasioning actual bodily harm).  Amidst all the media coverage, the difference between ‘common assault’ and ‘assault’ is not made clear nor is it explained who will choose the charge and how.

 

As indicated in Chapter 3, the preservation of the defence of reasonable chastisement is seen as an encroachment on the UNCRC Articles 19 and 37A, and the ECHR Article 3.  The Lester amendment appears to restrict the defence so much that it may as well be abolished in compliance with the European standards.  However, as stated in Chapter 1 and earlier in this conclusion, the Lester amendment still contravenes the UNCRC by interfering with the ‘family environment’ referred to in the preamble of the Convention.

 

Turning to the question of whether the three arguments covered by chapters 1 to 3 are enough to suggest that a change to the UK law on reasonable punishment was necessary, I submit that they are not.  The whole basis of the ‘equality for children in assault laws’ argument ignores the differences between parent-child relationships and adult-adult relationships, particularly when it comes to the context of assaults (another area given little consideration to).  The differences between these two types of relationship and the duties which come with them are incomparable (i.e. parents owe a duty to discipline and protect their children, but do not owe the same duty to another adult), thus suggesting the same rules should be applied in both relationships is inconceivable.  Resistance of the nanny state cannot be achieved with a smacking ban or any progression towards one, like the Lester amendment.  Any change to the law requiring heavier policing or greater surveillance or investigation into trivial matters constitutes intervention, which is an “erosion of civil liberties disguised as benevolent government.”[128] As for the influences from Europe, the smacking ban role model, Sweden, is not the utopia depicted by liberationists.  There are still problems with assaults on children, youth crime and high numbers of children in care in addition to the fear of being criminalised for disciplining children in Sweden. 

 

The strongest arguments for change were the needs to recognise children’s rights under the ECHR Article 3 (prohibition of torture) and the UN Committee on the Rights of the Child claims that the UK did not comply with the UNCRC.   The Lester amendment, albeit a change to the law, still does not provide the perfect solution to these arguments.  The Children Act 2004 s.58 may appear to comply with the ECHR by giving more recognition to the Article 3 rights of children, but in doing so the provision has created another contravention of the ECHR: diminishment the right of parents to a fair trial with a presumption of innocence until proven guilty (Article 6(2)). 

 

With regards to the UNCRC, the UN Committee had clearly stated that “governmental proposals to limit rather than remove the ‘reasonable chastisement’ defence do not comply with the principles and provisions of the Convention.”[129] The Lester amendment limits the use of the defence, as well creates a rights-based environment which contradicts the UNCRC preamble.  A point to be observed is that the UK does not owe the same obligatory duties it has under the ECHR to the UNCRC.  The UK has yet to incorporate the UNCRC into domestic law and until then the UNCRC only has persuasive authority.  Thus, the government was not fully obligated to change the law to better satisfy the UNCRC’s disapproval of the reasonable chastisement defence.

 

With the two Conventions in mind, I submit that the status quo pre-Children Act 2004 should have been preserved.  The most fundamental change needed was not a limitation or removal of the reasonable chastisement defence, as the problem is not that the defence is recognised in UK law but rather that it is unclear.  In the case of A v. UK[130] the Court found that four factors should be taken into consideration when assessing the reasonableness of an act of chastisement: the nature and context of the treatment, its duration, its physical and mental effects, and in some instances, the sex, age and state of health of the victim. Later, in R v. H[131], the issue arose again on the proper direction to be given to the jury in deciding whether chastisement was reasonable, and Rose L.J added a fifth factor to the list which introduced a subjective limb to the test: the reasons given by the defendant for administering the punishment.  Application of these factors ‘would adequately protect a defendant’s rights under Article 6 and a child’s rights under Article 3’ according the Court of Appeal (Criminal Division) in R v. H.  The list of factors (excluding Rose L.J’s addition in R v. H) was put to the respondents of the government’s 2000 consultation document ‘Protecting Children, Supporting Parents’ and 70% of the respondents felt the factors were at least sufficient[132].  The same consultation document also revealed that majority felt the defence of reasonable chastisement should not be restricted.[133]  It has been noted that the results of this consultation may not be representative of all the public, it is used here as an indicator of some support for the factors from non-members of the legal profession.

 

The defence of reasonable chastisement needed not removal or limitation, it simply needed clarification.  Following the authorities of A v. UK and R v. H, it should be clearly set out in UK law that judges should direct juries to consider the five factors affirmed in R v. H when deciding whether the defendant should be able to rely on the defence of reasonable chastisement.  In doing so the parent-child relationship is not ignored, attention is paid to why the parent chastised their child (the Lester amendment only looks at how), parents retain their Article 6 right to a fair trial, the UK remains a non-nanny state and the status quo is preserved.  In addition, children are not denied the rights conferred to them by ECHR Article 3 and UNCRC Articles 19 and 37A.  Clarifying the meaning of reasonable chastisement and its proper application should fall within the ambit of protecting children under Article 19, which under literal interpretation, leaves a wide area of discretionary judgement for the state.   The only ‘appropriate measure’ that was necessary pre-Children Act 2004 to properly protect children was to ensure the defence of reasonable chastisement was better understood and utilised, not abolished or limited.  This measure was clearly attainable before and without the Lester amendment.

********

Appendix 1

The Children Act 2004 was given Royal Assent on 15th November 2004.  The relevant section (below) came into force on 15th January 2005.

The Children Act 2004 s.58

Part 5: Other Provisions

Section 58

(1)   In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.

(2)   The offences referred to in subsection (1) are –

(a)    an offence under s.18 or 20 Offences Against the Person Act 1861 (c.100) (wounding and causing grievous bodily harm);

(b)   an offence under s.47 of that Act (assault occasioning actual bodily harm);

(c)    an offence under s.1 Children and Young Persons Act 1933 (c.12) (cruelty to persons under 16)

(3)   Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.

(4)   For the purposes of subsection (3) “actual bodily harm” has the same meaning as it has for the purposes of s.47 Offences Against the Person Act 1861.

(5)   In s.1 Children and Young Persons Act 1933, omit s.(1)(7)

 

 

 

 

 

 

 

 

Appendix 2

The Children and Young Persons Act 1933 was given Royal Assent on 13th April 1933.  The below provision has since been repealed by the Children Act 2004 s.58(5)

Children and Young Persons Act 1933 s. 1 (7)

Section 1 Cruelty to persons under sixteen

(7) Nothing in this section shall be construed as affecting the right of any person, or (subject to section 548 of the Education Act 1996) any other person, having the lawful control or charge of a child or young person to administer punishment to him.


 

Bibliography

Books

Archard, D., ‘Children: Rights and Childhood’ Routledge: London (1993)

Fortin, J., ‘Children’s Rights and the Developing Law’ LexisNexis UK: London (2003)

Gill, D. & Adams, B., ‘ABC of Communication Studies’ 2nd Edition Thomas Nelson & Sons Ltd: Surrey (1998)

Glazebrook, P. R., ‘Blackstone’s Statutes on Criminal Law’ 11th Edition Blackstone Press: London (2001)

Harding, L.F., ‘Perspectives in Child Care Policy’ 2nd Edition Longman Group Limited:Essex (1997)

Herring, J., ‘Family Law’ 2nd Edition Pearson Education Limited: Essex (2004)

Holt, J., ‘Escape from Childhood: The Needs and Rights of Children’ Penguin Books: Middlesex (1975)

Knutsson, K.E., ‘Children: Noble Causes or Worthy Citizens’ Arena, Ashgate Publishing Limited: Hampshire (1997)

Martin, A. E., (ed) Oxford Dictionary of Law’ 5th Edition Oxford University Press: Oxford (2002)

 

 

 

 

 

 

 

Articles

Barton, C., ‘Case Commentary: A v. UK The Thirty Thousand Pound Caning – an English Vice in Europe [1991] 11 C.F.L.Q. 63

Barton, C., ‘Parental Hitting – The ‘Responses’ to ‘Protecting Children, Supporting Parents’’ [2002] Fam. Law. 124

Burrows, L., ‘How to control adults by means of ‘children’s rights’’ (1999) http://www.nkmr.org/english/how_to_control_adults_by_means_%20of_childrens_rights.htm (16/01/2005)

Eekelaar, J., ‘The emergence of children’s rights’ (1986) 6 Ox. J.L.S 161

Fortin, J., ‘Children’s Rights and the Use of Physical Force’ [2001] 13 C.F.L.Q 243

Harrold-Claesson, R., ‘Smacking and the Law – a European Perspective’ (2001) http://www.nkmr.org./english/smacking_and_the_law_a_european_perspective.htm (16/01/2005)

Hane, L., ‘Crime and Punishment’ (1999) http://www.nkmr.org/english/crime_and_punishment_by_lennart_hane.htm (16/01/2005)

Heartfield, J., ‘Taboos: Smacking Parents’ (1999) http://www.nkmr.org/english/taboos_smacking_parents_by_james_heartfield.htm (16/01/2005)

Larzelere, R. E., ‘Sweden’s smacking ban: more harm than good’ (2004) http://www.christian.org.uk/pdfpublications/sweden_smacking.pdf (16/01/2005)

Montgomery, J., ‘Children as property?’ (1988) 51 M.L.R. 323

Paterson, C. R., ‘The child with unexplained fractures’ (1997) http://www.nkmr.org/english/the_child_with_unexplained_fractures.htm (18/01/2005)

Wells, N., ‘Why smacking should not be banned’ (2004) http://www.nkmr.org/english/why_smacking_should_not_be_banned.htm (16/01/2005)

Media

Anon, ‘Smacking Bill punishes the wrong people’ The Daily Telegraph 06 July 2004

Boyes, R., ‘Non-violent option makes ‘Germans and Swedes better parents’ The Times 06 July 2004

Charter, D. & Hurst, G., ‘Lords vote to limit smacking children to a ‘light tap’ but reject a total ban’ The Times 06 July 2004

Hall, S.,‘Parents face dilemma after smacking vote’ The Guardian 06 July 2004

Johnston, P., ‘Smack ban may ‘criminalise’ parents’ The Telegraph 06 July 2004

Johnston, P., ‘Deep down, they still think that Nanny knows best’ The Telegraph 03 November 2004

Jones, G., ‘Parents can smack, but not too hard’ The Telegraph 06 July 2004

Jones, G., ‘Peers agree to Lester’s ‘no marks’ compromise’ The Telegraph 06 July 2004

Jones, G., ‘Parents can still smack – if they’re gentle’ The Telegraph 03 November 2004

Kay, J., ‘Smack of the Nanny State?’  Seven Days, The Nottingham Evening Post 06 November 2004

Laville, S., ‘You can hit but you can’t hurt: Critics say slapping rule shows confusion’ The Guardian 06 July 2004

Rumbelow, H., ‘Rebel MPs fail to win total ban on smacking’ The Times 03 November 2004

Rumbelow, H. & Hurst, G., ‘Passionate alliance joins forces to land blow on Government’ The Times 03 November 2004

Treneman, A., ‘Outbursts and tantrums turn debate into a childish debate’ The Times 03 November 2004

Womack, S., ‘Experts say carrot is better than the stick’ The Telegraph 06 July 2004

Woods, V., ‘A fudge is better than a ban, take it from me’ The Daily Telegraph 06 July 2004

 

Cases (Westlaw)

A v. UK [1998] 2 F.L.R. 959; (1998) 27 E.H.R.R. 611

Cleary v. Booth (1893) 1 Q.B. 465

Costello-Roberts v. UK [1994] 1 F.C.R. 65

Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112

Hewer v. Bryant [1970] 1 Q.B. 357

In re Agar-Ellis (1883) 24 Ch. D. 317

R v. H (Assault of a Child: Reasonable Chastisement) [2001] E.W.C.A. Crim. 1024; [2002] 1 Cr. App. R. 7

R v. Hopley (1860) 2 F. & F. 202; 175 E.R. 1024

Re Angela Roddy (A Minor) [2004] E.M.L.R. 8

 

Other Materials

Parliamentary Debates: http://bills.ais.co.uk/AC.asp#HL35 (last visited 26/11/2004)

Department of Health, ‘Protecting Children, Supporting Parents: A Consultation Document on the Physical Punishment of Children’ (2000)

Department of Health, ‘Analysis of Responses to the ‘Protecting Children, Supporting Parents’ Consultation Document’ (2001)

Scottish Law Commission No. 135 Corporal Punishment

The Nordic Committee for Human Rights:  www.nkmr.org/english (16/01/2005)

Crown Prosecution Service: www.cps.gov.uk/legal/section5/chapter_c.html#09 (09/02/2005)

Current Law Statutes Annotated Volume 4: 1989 Sweet & Maxwell: London (1990)

www.endcorporalpunishment.org (26/02/2005)

www.scouting.org.za/resources/childsafety/childline/howadult.htm (26/02/2005)

 

 

 

 

 

 

Acknowledgements

 

Thank you to

Ruby Harrold-Claesson

for her informative contributions.

 

 

 

Abstract and Contents

 

 

Titel page

 

Articles

 

Books and Dissertations

 

Back to Main

 

 



[1] (1860) 2 F. & F. 202

[2] (1860) 2 F. & F. 202, 206; 175 E.R. 1024, 1026

[3] [1998] 2 F.L.R. 959

[4] Department of Health, ‘Protecting Children, Supporting Parents: A Consultation Document on the Physical Punishment of Children’ (2000); Department of Health, ‘Analysis of Responses to the ‘Protecting Children, Supporting Parents’ Consultation Document’ (2001)

[5] Explanatory Notes to Children Act 2004 para.236

[6] Offences Against the Person Act 1861 s.47

[7] CPS Charging Standards Part 1 (iv)

[8] [1984] 3 All E.R. 374; 377 per Lord Goff

[9] Oxford Dictionary of Law (2002) page 34

[10] Oxford Dictionary of Law (2002) page 46

[12] CPS charging standard: offences against the person 1) Common Assault, contrary to section 39 Criminal Justice Act (viii)(b) www.cps.gov.uk/legal/section5/chapter_c.html#03

[13] Jones, G., ‘Parents can smack, but not too hard’ The Telegraph 06 July 2004 

[14] Op. cit. fn.13

[15] Professor Leon Polney quoted in Kay, J., ‘Smack of the Nanny State (2004)

[16] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518–603 per Lord Laming;‘Parents can smack, but not too hard’ The Telegraph 06 July 2004

[17] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603 per Earl Howe

[18] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603 per Baroness Howells

[19] Paterson, C. R., ‘The child with unexplained fractures’ (1997) 147 NLJ 648

[20] Rushdie quoted by Woods, V., ‘A fudge is better than a ban – take it from me’ The Telegraph 06 July 2004

[21] Alan Levy QC quoted by Hall, S., ‘Parents face dilemma after smacking vote’ The Guardian 06 July 2004

[22] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603

[23] Eekelaar, J., ‘The emergence of children’s rights’ (1986) 6 Ox. J.L.S 161, 167 fn 28

[24] Wells, N., ‘Why smacking should not be banned’ (2004) paragraph 3

[25] Parliamentary debate: Lords Committee stage third day 20/05/2004 columns 878-914, 925-1000

[26] Op. cit. fn.22

[27] Hewer v. Bryant [1970] 1 Q.B. 357, 369 per Lord Denning MR; In re Agar-Ellis (1883) 24 Ch. D. 317, 335-6 per Bowen L.J

[28] Cleary v. Booth (1893) 1 Q.B. 465; 468 per Collins, J

[29]Herring ‘Family Law’ (2004) page 351

[30] Pringle (1974) cited in Harding, L.F., ‘Perspectives in Child Care Policy’ (1991) page 43

[31] Op. cit. fn.25

[32] Mehrabian (1972) cited in Gill, D. & Adams, B., ‘ABC of Communication Studies’ (1998)

[33] Scottish Law Commission No. 135: 2.70(c)

[34] Op. cit. fn.22

[35] A v. UK [1998] 2 F.L.R. 959; R v. H (Assault of a Child: Reasonable Chastisement) [2001] E.W.C.A. Crim. 1024

[36] [1998] 2 F.L.R. 959; ECtHR 23/09/98 following Costello-Roberts v. UK [1994] 1 F.C.R. 65

[37] A v.UK[1998] 2 F.L.R. 959 at para.20

[38] [2001] E.W.C.A. Crim. 1024

[39] Wells, N., ‘Why smacking should not be banned’ (2004) paragraph 5

[40] Holt ‘Escape from Childhood: The Needs and Rights of Children’ (1975)

[41] Parliamentary Debate: Lords Debate second reading 30/03/2004 columns 1208-1310

[42] Eekelaar ‘The emergence of children’s rights’ (1986) 6 Ox J.L.S 161 cited in Herring ‘Family Law’ (2004) page 384

[43] Herring ‘Family Law’ (2004) pages 385-6

[44] [2004] E.M.L.R. 8

[45] [2004] E.M.L.R. 8 paragraph 46 per Munby, J.

[46] Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112

[47] Gillick [1986] A.C. 112, 171 per Lord Fraser, cited in Re Roddy [2004] E.M.L.R. 8 paragraph 50 per    Munby, J.

[48] Gillick [1986] A.C. 112, 186 per Lord Scarman cited in Re Roddy [2004] E.M.L.R. 8 paragraph 51 per Munby, J.

[49] Purdy, L. (1992) cited in Knuttson, K. E., ‘Children: Noble Causes or Worthy Citizens’ page 59

[50] ibid.

[51] O’Neill, O. (1992) cited in Knuttson, K. E., ‘Children: Noble Causes or Worthy Citizens’ page 60

[52] Burrows, L., ‘How to control adults by means of ‘children’s rights’’ (1999)

[53] ibid.

[54] Parliamentary Debate Lords Committee stage third day 20/05/2004 columns 878-914, 925-1000

[55] ibid.

[56] Archard, D., ‘Children: Rights and Childhood’ (1993) page 89

[57] UN Convention on the Rights of the Child Preamble cited in Fortin, J., ‘Children’s Rights and the Developing Law’ (2003) page 607

[58] Fortin, J., ‘Children’s Rights and the Developing Law’ (2003) page 603

[59] Johnston, P., ‘Deep down they still think Nanny knows best’ The Telegraph 03 November 2004

[60] Hall, S., ‘Parents face dilemma after smacking vote’ The Guardian 06 July 2004; Jones,G., ‘Parents can smack but not too hard’ The Telegraph 06 July 2004; Laville, S., ‘You can hit but you can’t hurt: Critics say slapping rule shows confusion’ The Guardian 06 July 2004; Johnston, P., ‘Deep down, they still think that Nanny knows best’ The Telegraph 03 November 2004; Rumbelow, H. & Hurst, G., ‘Passionate alliance joins forces to land blow on Government’ The Times 03 November 2004; Treneman, A., ‘Outbursts and tantrums turn debate into a childish display’ The Times 03 November 2004

[61] Jones, G., ‘Parents can smack but not too hard’ The Telegraph 06 July 2004

[62] Op. cit fn.59

[63] Parliamentary Debate: Lords Second Reading Debate 30/03/2004 columns 1208-1310 per Baroness Walmsley; Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603 per Lord Laming

[64] Parliamentary Debate: Lords Committee stage third day 20/05/2004 columns 878-914, 925-1000

[65] Harding, L.F., ‘Perspectives in Child Care Policy’ (1991) page 40

[66] ibid.

[67] Kellmer Pringle (1974) ‘The Needs of Children’ as cited in Harding, L.F., ‘Perspectives in Child Care Policy’ (1997) page 43

[68] Children Act 1989 s.3

[69] Montgomery, J., ‘Children as property?’ (1988) 51 M.L.R. 323, 324

[70] Dingwall, Eekelaar and Murray (1993) ‘The Protection of Children’ Chapter 2 cited in Harding, L.F., ‘Perspectives in Child Care Policy’ (1997) pages 43-4

[71] ibid.

[72] Harding, L.F., ‘Perspectives in Child Care Policy’ (1997) page 45

[73] Kay, J., ‘Smack of the Nanny State’ (2004)

[74] Parliamentary Debate: Lords Report stage fourth day columns 518–603 per Lord Laming cited in Jones, G., ‘Parents can smack, but not too hard’ The Telegraph 06 July 2004

[75] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603 per Earl Howe

[76] DofH (2000) para 2.4 cited in Fortin, J., ‘Children’s Rights and the Developing Law’ (2003) page 279

[77] Wald, M., ‘Children’s rights: A framework for anaylsis’ (1979) 12 University of California Davis Law Review 225-282 cited in Fortin, J., ‘Children’s Rights and the Developing Law’ (2003) page 279

 

[78] Harrold-Claesson, R., ‘Smacking and the Law – a European Perspective’ (2001)

[79] European Convention of Human Rights 1950; United Nations Convention on the Rights of the Child 1989

[81] Parliamentary Debate: Lords Second Reading Debate 30/03/2004 columns 1208-310

[82] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603

[83] Boyes, R., ‘Non-violent option makes ‘German and Swedes better parents’’ The Times 06 July 2004

[84] Op. cit. fn82

[85] Op. cit. fn81

[86] Parliamentary Debate: Lords Committee stage third day 20/05/2004 columns 878-914, 925-1000

[87] Larzelere Sweden’s smacking ban: more harm than good’ (2004)

[88]‘A Generation Without Smacking: The Impact of Sweden’s Ban on Physical Punishment’(2000) cited in Larzelere Sweden’s smacking ban: more harm than good’ (2004)

[89] Larzelere Sweden’s smacking ban: more harm than good’ (2004) pages 6-7

[90] Larzelere Sweden’s smacking ban: more harm than good’ (2004) page 8

[91] Larzelere Sweden’s smacking ban: more harm than good’ (2004) page 9

[92] Larzelere Sweden’s smacking ban: more harm than good’ (2004) pages 10-14

[93] Op. cit. fn.89

[94]Larzelere, R. E., Sweden’s smacking ban: more harm than good’ (2004) page 7

[95] Kay, J., ‘Smack of the Nanny State (2004)

[96] ibid.

[97] Personal communication: E-mail received 18/01/2005

[98] Harrold-Claesson, R., ‘Smacking and the Law – A European Perspective’ (2001) page 4

[99] Parliamentary Debate: Lords second reading debate 30/03/2004 columns 1208-1310

[100] Larzelere Sweden’s smacking ban: more harm than good’ (2004) page 11

[101] Larzelere Sweden’s smacking ban: more harm than good’ (2004) page 8

[102] Wells, N., ‘Why smacking should not be banned’ (2004)

[103] op. cit. fn.85 and fn.86

[104] op. cit. fn.100

[105] Harrold-Claesson, R., ‘Smacking and the Law – A European Perspective’ (2001)

[106] Hane, L., ‘Crime and Punishment’ (1999)

[108] Wittrock (1995) Frequency of Criminal Assaults Against Children from 7-14 Years of Age cited in Larzlere Sweden’s ban on smacking: more harm than good’ (2004) page 9

[109] Kay, J., ‘Smack of the Nanny State(2004)

[110] [1998] 2 F.L.R. 959

[111] ‘Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland’ CRC/C/15/Add34 (Centre for Human Rights, Geneva, 1995) at para.16

[112] UK’s First Report to the UN Committee on the Rights of the Child’ CRC/C/SR.205 at para.63

[113] Barton, C., ‘Case Commentary: A v. UK The thirty thousand pound caning – an ‘English vice’in Europe[1999] C.F.L.Q. 63, 64

[114] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603 per Lord Thomas

[115] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603

[116] Heartfield, J., ‘Taboos: Smacking Parents’ (1999)

[117] Op. cit. fn.116

[118] Personal Communication. E-mail received 04/02/2005

[119] Personal Communication. E-mail received 18/01/2005

[120] ibid.

[121] Op. cit. fn.118

[122] Editorial in “The Day” (DAGEN) published 17/11/78

[123] Eekelaar & Clive ‘Custody after divorce’ (1977) cited in Current Law Statutes Annotated Volume 4 (1989) Chapter 41/0-2

[124] Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603

[125] UN Convention on the Rights of the Child preamble

[126] Children Act 2004 s.58(5) see Annex 1

[127] Op. cit. fn.119

[128] Bernard Levin quoted by Johnston, P., ‘Deep down they still think Nanny knows best’ The Telegraph 03 November 2004

[129] UN Committee on the Rights of the Child Report 04/10/2002 cited by Lord Thomas in Parliamentary Debate: Lords Report stage fourth day 05/07/2004 columns 518-603

[130] (1998) 27 E.H.R.R. 611

[131] [2002] 1 Cr. App. R. 7

[132]Analysis of responses to the Protecting Children, Supporting Parents consultation document’ (2001) Part E paras 29-30 at page 7

[133] ‘Analysis of responses to the Protecting Children, Supporting Parents consultation document’ (2001) Part E para 54 at page 15

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