Joint Committee On Human Rights Tenth Report


7  CIVIL RIGHTS AND FREEDOMS

Right to establish the Identity of a Parent

  92.  The recommendation of the UN Committee that—

is a complex issue. The UK made a Declaration, on ratification of the Covenant, that it interpreted—

    ... the references in the Convention to 'parents' to mean only those persons who, as a matter of national law, are treated as parents. This includes cases where the law regards a child as having only one parent, for example where a child has been adopted by one person only and in certain cases where a child is conceived other than as a result of sexual intercourse by the woman who gives birth to it and she is treated as the only parent.

Some of the UN Committee's concerns have been addressed by the Adoption and Children Act 2002, which established detailed arrangements for deciding when adopted children (when they become adults) will be able to obtain information about their backgrounds and birth parents and families, taking account of the need to balance the right of the adopted person to information as an aspect of his or her right to respect for private and family life with the right of birth parents and others to confidentiality. That Act also establishes for the first time that an unmarried or same­sex couple may jointly adopt a child and provides that the adopted person is to be treated in law as if born as the child of the adopters.[163]

  93.  In relation to information about the background of children born by assisted fertilisation techniques, the UN Committee does not distinguish in its observations between such circumstances and the situation of adopted children and children born out of wedlock. We consider that the giving of the right to know the identity of their "parents" to children conceived by such techniques needs very careful consideration, and will involve a complex and delicate balancing of competing rights and needs. Following a consultation exercise, the Government announced on 25 January 2003 that it proposed—

    ... to lay regulations before Parliament, so that people conceived as a result of sperm, egg or embryo donation will be able to obtain more information about their donors in the future. The information will not identify the donors. We hope that donor­conceived people are all part of loving families but we also understand that at some point in their lives they may decide they want to know more about their genetic origins and we think it is right that they should be able to ask for non­identifying information. We propose that the regulations enable the Human Fertilisation and Embryology Authority (HFEA) to provide non­identifying information about donors to donor­conceived people aged 18 or over who request that information and who were born after the HFEA's register came into effect in 1991. In practice the information would be available from 2010 (eighteen years after the register came into operation). To enable standardised information to be available in the future, we will seek approval for the regulations to require the HFEA to collect standardised non­identifying information with immediate effect. We will also explore the possibility of setting up a pilot scheme for a voluntary contact register for donor­conceived people aged 18 and over.

We consider that this is an appropriate and proportionate resolution of the issue. However, we note with some regret that no reference was made to meeting obligations under the CRC in this announcement.

"Reasonable Chastisement"

  94.  In its Concluding Observations the UN Committee said that it deeply regretted—

In 1995, the UN Committee had also commented that—

    The imprecise nature of the expression of reasonable chastisement ... may pave the way for it to be interpreted in a subjective and arbitrary manner ...[165]

In this section of the report we consider, in that context, whether the current statutory position in the UK confers adequate protection against potential breaches of Article 19 of the Convention, which provides that—

      1.  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, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

      2.  Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow­up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

THE DEFENCE OF "REASONABLE CHASTISEMENT"

  95.  UK law provides a legal defence for parents (and, currently, some other carers with parental authority)[166] physically to punish a child. The common law defence of reasonable chastisement[167] is statutorily confirmed by Section 1(7) of the Children and Young Persons Act 1933—

    Nothing in this section shall be construed as affecting the right of any parent, 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.

  96.  The Law Commission has recently published a consultative report about changes to those parts of section 1 which deal with non-accidental death and serious injury to children but does not deal with the relatively minor forms of injury usually occasioned by corporal punishment.[168] We, here, examine the effect of section 1 on corporal punishment as a separate issue. There is no defence in UK law that a "reasonable" degree of physical assault on adults is permissible. In maintaining this statutory and common law distinction between the rights of children and adults, the UK differs from the current situation in many of our European neighbours.[169] And a wide range of international opinion does not accept that the continuance of the statutory defence of reasonable chastisement is compatible with the UK's international obligations—not only with Article 19 of the CRC but also with the child's right to equal treatment under the law.

  97.  The Government has recognised this problem. In January 2000, following the adverse judgement in the European Court of Human Rights in the case of A v UK,[170] it launched a consultation on the replacement or limiting of the defence of reasonable chastisement.[171] In November 2001, the Minister for Health announced that following the consultation, the Government did not believe—

    ...that any further change to the law at this time would be appropriate—it would neither command widespread support nor be capable of enforcement.[172]

DOES THE DEFENCE ADEQUATELY PROTECT CHILDREN?

  98.  The Government's position is that—

The Minister for Children and Young People enlarged on this argument in his oral evidence—

    ... the sort of mild smack that most parents have in mind if they are talking about smacking their children is not ... in the same category as the person who is … beating up their children. I think it is quite important that we do not … lump this in as all being indistinguishable violence and therefore all bad in the same category because I think we lose contact then with the common sense of most people in the world outside ...[174]

  99.  There is evidence, however, that "reasonable" is interpreted by juries and the courts to cover a range of behaviour that many people would consider went beyond a "loving smack". Although there are no official statistics, the Children's Rights Alliance for England cited recent cases drawn from newspaper reports—

    A father was cleared of assault in a Skye court by a Sheriff who said he considered the father's actions "wholly justifiable". The man was charged after striking his 12 year­old daughter in the face, causing it to swell and making it difficult for her to move and open her jaw. The father took her to hospital where the doctor who examined her was so worried by the father's attitude he called the police. The father … told the court that he had "measured" the blow: "I did it for her own good. I used to play rugby. I know how to take a man's head off. I hit her with the back of my hand. It was a small slap." (Sunday Mail, April 8 2001)

    ... A judge ordered the jury to find a stepfather not guilty on three counts of cruelty. He had admitted "smacking and tapping" his three children aged nine, six and five to discipline them … using a wooden spoon and a slipper. (Daily Mail, November 24 2001)

    … A stepfather was acquitted after admitting slapping his ten­year old stepson twice across the cheek, causing bruising, for stealing from his teacher. The man admitted he slapped him out of frustration and with hindsight may have used too much force but pleaded not guilty on the grounds of reasonable chastisement. (Bath Chronicle, October 20 2000)[175]

  100.  The defence of reasonable chastisement has also been found to be compatible with the Human Rights Act in cases where it is certainly appears to be at least debatable whether the level of chastisement was "reasonable"—

    A judge was to hear a case in which a father admitted using a belt causing bruising when he punished his four year­old son for refusing to write his name. The father indicated his intention to use the common law defence of "reasonable chastisement". The judge was concerned that the "A v UK" judgment and implementation of the Human Rights Act could make use of the defence inappropriate. The case was referred for direction to the Court of Appeal (Criminal Division) [which held] that parents and other carers retained use of the defence and that courts should take account of certain factors in determining whether punishment was "reasonable": the nature and context of the defendant's behaviour, its duration, its physical and mental consequences in relation to the child, the age and personal characteristics of the child and the reasons given by the defendant for administering punishment. At trial, the father invoked the defence and was acquitted.[176]

It is perhaps cases like these that have led to the Committee of Ministers of the Council of Europe, at its February 2003 meeting, to conclude—

    In view of recent case­law evidencing a continuing high degree of tolerance in respect of what violence constitutes "reasonable chastisement" … and the Government's undertaking before the Court [in A v UK], several Delegations and the Secretariat expressed that, apart from the measures already announced, legislative changes would be needed in this case. The Committee has asked to be kept informed of any new development in particular as regards legislative change.[177]

  101.  In oral evidence, the Director of the NSPCC also raised the issue of the difficulty of interpretation, echoing the concerns of the UN Committee—

    The fact that people occasionally smack their children does not lead automatically to abuse but there is no doubt at all that the evidence from all children who suffer from abuse is that they have been in an environment which begins with light smacking and then that smacking becomes harder ... It becomes very easily something which does escalate.[178]

The Children's Commissioner for Wales has asked—

    ... "What do you do when a smack fails? Hit them harder?" Smacking carries with it an inbuilt tendency towards an escalation of violence. There have been cases of beatings with belts and bits of wood having been deemed acceptable in the British courts, treatment that would probably have been successfully prosecuted if the victims were animals.[179]

Perhaps most chillingly, we have the testimony of Marie-Therese Kouao, the murderer of Victoria Climbié, who blamed health service staff for Victoria's death, saying—

    You don't kill people by smacking them.[180]

  102.  The Minister for Children and Young People argued that it was not only wrong but dangerous to link smacking and child abuse deaths—that this risked diverting attention from children who were genuinely at risk. But we conclude that, sometimes, the failure to make the connection can be equally dangerous. The question is whether the existence of the defence of reasonable chastisement helps or hinders in drawing the line between smacking and abuse. As the UN Committee noted, records are simply not available to ascertain the extent to which the defence of reasonable chastisement has either been invoked in cases of severe physical assault on children or against charges relating to a "loving smack".[181]

DO CHILDREN FEEL THEIR RIGHTS ARE PROTECTED?

  103.  The Minister for Children and Young People told us that he—

However, research for the Children's Society revealed that physical punishment in the home was a matter of concern for among younger children and older teenagers with step-parents.[183] The National Children's Bureau and Save the Children consulted 76 five, six and seven year-olds about smacking. They responded—

    'It feels like someone banged you with a hammer' (5 year-old girl) ... 'It hurts and it's painful inside—it's like breaking your bones' (7 year-old girl) ...'[It feels] like someone's punched you or kicked you or something' (6 year-old boy) ... 'you're hurt and it makes you cry [and] drips come out of your eyes' (5 year-old girl).[184]

Certainly, there are children who have strong views on the matter. One seven year-old was reported as observing—

    I was just thinking that if they changed the law then a lot of people will realise what they had done to their child and they would probably…be happy that the 1aw was changed. If they don't change the law they will think "oh well, the child doesn't mind so we can keep on doing it".[185]

WOULD ABOLITION OF THE DEFENCE INFRINGE THE RIGHTS OF THE FAMILY?

  104.  The Minister for Children and Young People told us—

There are strong views expressed on both sides which perhaps go some way to explain the Government's reluctance to take a position on the issue of "smacking"—

    On the basis of the experience of generations of parents and recent academic research findings, Families First rejects the notion that all forms of corporal discipline are negative and violent, and constitute a violation of a child's human dignity and physical integrity ... While there may be a place for public education to discourage the improper use of physical sanctions and encouraging their proper use, there is no basis for stigmatising it and rejecting its use wholesale.[187]

These comments from Families First reflect Article 18.2 of the CRC, which requires that—

    [the Government] shall render appropriate assistance to parents … in the performance of their child­rearing responsibilities.

  105.  On the other hand, 99% of parents have declined to give permission for childminders to smack their children.[188] A journalist (and parent) recently described his own rapid conversion to the case for abolishing the defence—

    ... I have occasionally smacked my children, and felt it was wrong to criminalise a punishment that could be less ugly than, say, the psychological cruelty of withdrawing love or imposing silence. But ... I recently found myself on a [London] Tube train watching a young woman attack a child, who couldn't have been more than a year old, in her pushchair ... I could not help an expression of revulsion and sadness momentarily crossing my features … [seeing this] the mother [informed] me that it was her child and she could do what she liked with it … It was then I realised how necessary it was for smacking to become illegal. The levels of child abuse in this country are appallingly high as it is, and they cannot be helped by the fact that the law sanctions physical punishment.[189]

We heard from another parent, in her capacity as UN High Commissioner for Human Rights. Mary Robinson's view was that—

    … there is an approach which recognises the need for discipline, the need for children to know that there are consequences of bad conduct, that they are consistent and that they will be applied. It takes a bit more time sometimes if you are not going to use physical force to drive home your point but it is an extremely important message for the child who will grow into an adult …[190]

  106.  As described to us by the Minister for Children and Young People in his evidence, the Government's approach is to—

    ... put the emphasis much more strongly on the positive measures we can take as a government through programmes like Sure Start, for example, to promote good parenting. An intrinsic part of that work is to support parents in understanding alternatives to corporal punishment as a way of disciplining their children … given … that it would be desirable to minimise the use of smacking, the really practical question is, are we doing things that would minimise it and supporting parents to bring up their children in different ways.[191]

This approach is in line with some expert opinion. The British Medical Association has argued—

    Children often learn most effectively by example, and smacking provides the example that problems should be solved by resorting to physical aggression. Smacking is therefore a lesson in bad behaviour rather than good behaviour and can increase the likelihood of violent and aggressive behaviour in the long term.[192]

The Government's efforts in this area are clearly in compliance with Article 18.2 of the CRC. But the UN Committee was concerned that—

    … [current laws] suggest that some forms of corporal punishment are acceptable and therefore undermine educational measures to promote positive and non­violent discipline.[193]

More than 350 organisations recently joined forces to say that—

    The current law sends out a dangerous and misleading message to parents that it is safe and acceptable to physically punish their children, even babies who are the most vulnerable. They believe that the law as it stands undermines their work with children and is at odds with their positive parenting messages.[194]

COULD A CHANGE IN THE LAW BE MADE TO WORK?

  107.  If the retention of the defence of reasonable chastisement risks undermining the Government's efforts to promote positive approaches to parenting in line with its obligations under Article 18.2 of the Convention, and if it puts the UK at risk of contravening the Convention, what is the argument for retaining it? The Minister for Children and Young People told us that one of the difficulties he had was that replacement legislation would be difficult to enforce.[195]

  108.  We agree that if it were believed that removal of the reasonable chastisement defence would lead to parents being prosecuted for mild smacks, the measure would probably fail to command public and parliamentary support. But a majority would probably agree that the progressive narrowing of the limits on lawful corporal punishment of children has been a positive feature of social development in the UK. Physical assault on children should continue to be seen as being in almost all circumstances a disproportionate, and futile, violation of children's rights.

  109.  There is little ambiguity in Article 19 of the CRC, which requires States Parties to "take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse ... while in the care of parent(s), legal guardian(s) or any other person who has the care of the child". On the face of it, the retention of the defence of reasonable chastisement is a breach of Article 19 (although there is room for debate over the word "appropriate"). Its wholesale repeal could have the virtue of greater clarity than the current law. It would then be necessary to rely on current prosecution policy—the evidential test and the public interest test—to ensure that mild smacks of children, like minor assaults on adults, would not be prosecuted. Careful prosecution guidelines would have to ensure that there is a reasonable degree of legal certainty for parents at the same time as providing greater protection for children.

  110.  We have examined the case for retaining the defence, but find the lack of respect it embodies for children's entitlement to be free from physical assault to be unacceptable. The case for change is reinforced by recommendations of the UN Committee on Economic, Social and Cultural Rights and the European Committee on Social Rights,[196] and by the observations of the Council of Europe's Committee of Ministers on the steps required for the proper execution of the judgement in the case of A v UK. In determining how best to achieve full compliance with its international obligations, the Government should review the experience of other member states of the Council of Europe.

  111.  We conclude that the time has come for the Government to act upon the recommendations of the UN Committee on the Rights of the Child concerning the corporal punishment of children and the incompatibility of the defence of reasonable chastisement with its obligations under the Convention. We do not accept that the decision of the Government not to repeal or replace the defence of reasonable chastisement is compatible with its obligations under the Convention on the Rights of the Child.



162   See Annex 3, para 32. Back

163   Adoption and Children Act 2002, ss. 77 and 79- 81 and Sch. 1. Back

164   See Annex 3, para 35. Back

165   See Annex 6, para 16. Back

166   The DfES announced on 6 May 2003 that with effect from September 2003 the National Standards for Under Eights Childminding and Day Care would be revised to forbid smacking by childminders regardless of parental consent. Back

167   R v. Hopley (1860) per Cockburn CJ. Back

168   Law Commission No. 279, Children: Their Non-Accidental Death or Serious Injury (Criminal Trials): A Consultative Report. Back

169   Other countries that have abolished the physical punishment of children include Sweden, Italy, Austria, Croatia, Cyprus, Denmark, Finland, Germany, Latvia, Norway and Israel. Back

170   The judgement related to ECHR Article 3, not CRC Article 19. Back

171   In line with an undertaking given in Strasbourg in response to the judgement . In Scotland, the equivalent provision to s 1(7) of the Children and Young Persons Act 1933 (s 12(7) of the Children and Young Persons (Scotland) Act 1937) has been replaced by s 51 of the Criminal Justice (Scotland) Act 2003. Back

172   Department of Health Press Release 2001/0524, 5 November 2001. Back

173   See Annex 4. Back

174   Q 97 Back

175   CRAE, Ev 52-60. Back

176   Peter Newell Ev referring to R v H, Court of Appeal, Criminal Division, judgment April 25 2001; reported in The Times May 17 2001. Back

177   A v UK supervision by Council of Europe Committee of Ministers; annotated minutes from February 2003 meeting. Back

178   Q 23 Back

179   Children's Commissioner for Wales, Annual Report 2001­02, p. 20. Back

180   At her appearance at the Laming inquiry hearings, quoted in The Guardian, 9 January 2002. Back

181   See Annex 3, para 37. Back

182   Q 99 Back

183   The Children's Society, It's not fair: young people's reflections on children's rights, 1999 p 2. Back

184   CRAE, Ev 52-60. Back

185   ibid. Back

186   Q 98 Back

187   Families First, Ev 76. Back

188   DfES press release, 6 May 2003. Back

189   Tim Lott, Evening Standard, October 25, 2002. Back

190   22nd report, Q 95. Back

191   Q 93 and Q 96 Back

192   British Medical Association (1999), Growing Up in Britain: Ensuring a healthy future for our children, BMJ Books, London. Back

193   See Annex 3, 2002, para 35. Back

194   NSPCC press release, October 2002, about a conference organised by the NSPCC, the National Early Years Network, the Community Practitioners' and Health Visitors' Association and the National Childminding Association. Back

195   Q 96 Back

196   The UN Committee on Economic, Social and Cultural Rights, reported in May 2002 that: "Given the principle of the dignity of the individual that provides the foundation for international human rights law … the Committee recommends that the physical punishment of children in families be prohibited…" [E/C.12/1/Add.79, para 36] and the European Committee on Social Rights, in a general observation issued in 2001, commented: "The Committee does not find it acceptable that a society which prohibits any form of physical violence between adults would accept that adults subject children to physical violence. The Committee does not consider that there can be any educational value in corporal punishment of children that cannot be otherwise achieved." [Conclusions XV-2, Volume 1, published in 2001]. Back


 
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