Joint Committee On Human Rights Nineteenth Report


4 Reasonable chastisement defence

Background

118. In our recent Report on The UN Convention on the Rights of the Child[130] we examined the case for retaining the defence of reasonable chastisement in UK law in light of the recent pronouncements of a number of significant international bodies charged with supervising and monitoring compliance with the UK's international human rights obligations.[131]

119. After taking evidence on the issue, and carefully considering the arguments for and against retaining the defence,[132] we concluded 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.[133]

120. We repeated this concern in our report on our initial consideration of this Bill,[134] and also expressed our concern that the failure to remove the reasonable chastisement defence might put the UK in breach of Article 46 ECHR, which requires the UK to comply with the judgment of the European Court of Human Rights in A v UK, including by the adoption of general measures to prevent a repetition of the violation found in that case.

121. At report stage, the House of Lords amended the Bill to include a new clause restricting the availability of the reasonable chastisement defence but not abolishing it altogether.[135] It removes the availability of reasonable chastisement as a defence to the offences of wounding and causing grievous bodily harm,[136] assault occasioning actual bodily harm,[137] and cruelty to persons under sixteen. It leaves the defence available to a charge of common assault.

122. A new clause which would have abolished the defence altogether was also moved at report stage. Its effect would have been to make unlawful all use of physical force on children as a deliberate act of punishment, while broadly preserving the defence of what the Court of Human Rights has called "manhandling to rescue", in circumstances where the use of physical force is necessary to protect a child in immediate danger or where their actions might put another in danger. This was defeated.[138]

123. We now consider whether the new clause in the Bill satisfies the relevant human rights obligations by which the UK is bound. We recognize that this is an issue which arouses strong feelings, and that reasonable people disagree as to whether, as a matter of political judgment, it is right or wise to use the criminal law to prohibit the smacking of children. Our task, however, is to examine carefully and dispassionately the content of the international human rights obligations which bind the UK and to advise Parliament as to whether a proposal to legislate in a particular way, or a failure to legislate, is compatible with those legal obligations. We therefore confine ourselves strictly to a consideration of the relevant human rights obligations which are engaged by the new clause restricting the scope of the reasonable chastisement defence.

124. The human rights compatibility issues which arise are:

a)  whether the new clause satisfies the UK's obligations to comply with the judgment of the European Court of Human Rights in A v UK;

b)  whether the new clause gives rise to any new risk of incompatibility with the European Convention on Human Rights;

c)  whether the new clause satisfies the UK's obligations under the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, and the European Social Charter;

d)  whether there is any conflict between the UK's obligations under the ECHR on the one hand and the CRC, ICESCR and the European Social Charter on the other.

Compliance with the judgment in A v UK

125. In A v UK the European Court of Human Rights held that the UK was in breach of Article 3 ECHR because its law failed to provide adequate protection to the applicant in that case against treatment or punishment contrary to Article 3, by permitting a defence of reasonable chastisement in the circumstances of the case.

126. The applicant was a child who, at the age of nine, had been hit by his stepfather with a garden cane on more than one occasion. The child had been found to have a number of linear bruises on the back of his legs, some of them fresh, some several days old. The child's brother told the school that his brother was being hit with a stick by his stepfather. The head teacher told social services, who contacted the police. The stepfather was arrested and charged with assault occasioning actual bodily harm.[139]

127. At his trial the stepfather did not dispute that he had caned the child on a number of occasions, but he relied on the defence of reasonable chastisement, arguing that caning had been necessary and reasonable because the applicant was a difficult boy who did not respond to parental or school discipline. The judge directed the jury that it is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent provided that the correction be moderate in its manner, the instrument and the quantity of it, and that it was for the prosecution to prove that it was not lawful correction. The jury found the stepfather not guilty of assault occasioning actual bodily harm.

128. The child complained to the European Court of Human Rights on three grounds:

i)  that the State had failed to protect him from inhuman and degrading treatment by his step-father in violation of Article 3 ECHR;

ii)  that the failure to protect him was in breach of his right to physical integrity guaranteed by Article 8 ECHR; and

iii)  that the domestic law on assault discriminated against children, in violation of Article 14 in conjunction with Articles 3 and 8.

129. The Court considered whether, in all the circumstances of the case, the ill-treatment of the child attained the minimum level of severity necessary to fall within the scope of Article 3. It found that hitting a nine year old child with a garden cane on more than one occasion and with sufficient force to leave bruises was sufficient to reach the level of severity prohibited by Article 3.[140] It also held that, under Articles 1 and 3 ECHR, children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity.[141] In light of the acquittal of the stepfather, despite the fact that he had subjected the child to treatment of sufficient severity to fall within the scope of Article 3, the Court held that UK law, by providing a defence of reasonable chastisement in the circumstances of the case, did not provide adequate protection to the child against treatment or punishment contrary to Article 3, and that there had therefore been a violation of that Article.

130. The applicant invited the Court also to rule on the merits of his Article 8 complaint, which he argued was necessary in order to provide guidance for the Government and protection for children against all forms of deliberate violence.[142] However, the Court declined to do so, holding that having found a violation of Article 3 it was not necessary to examine whether the inadequacy of legal protection was also in breach of Article 8.[143] The complaint of discrimination contrary to Article 14, in conjunction with Articles 3 and 8, was not pursued by the applicant.

131. The UK Government accepted before the Court that there had been a violation of Article 3. It accepted that the law did not provide adequate protection to children against inhuman and degrading treatment and should be amended.[144]

132. The Committee of Ministers of the Council of Europe is responsible for supervising the implementation of judgments by the European Court of Human Rights. The Government has sought to persuade the Committee of Ministers that legislative reform of the law on reasonable chastisement is no longer necessary in light of the guidance given by the Court of Appeal about the scope of that defence following the decision in A v UK.[145] The Committee of Ministers, however, at its February 2003 meeting, indicated that several Delegations and the Secretariat were of the view that legislative changes would be needed in order to comply with the judgment in A, and asked to be kept informed of any new development, in particular as regards legislative change. The Committee of Ministers has yet to decide whether the UK has complied with the judgment in A to its satisfaction.

133. The question which now arises is whether the amendment of the law of reasonable chastisement by new clause 49 of the Children Bill is sufficient to satisfy the obligation on the UK[146] to comply with the judgment in A v UK. The obligation to comply with the judgment includes an obligation to adopt general measures which would prevent a repetition of the violation found by the Court. At the very least this means that the measures introduced would prevent a future violation on identical facts. More generally, it is also very likely to mean that the measures must ensure that the defence of reasonable chastisement will never be available as a defence to offences concerning treatment or punishment which crossed the minimum severity threshold of Article 3.

134. There is no doubt that the restriction of the scope of the reasonable chastisement defence by the new clause 49 would prevent an acquittal in the future on identical facts to those in A v UK: by virtue of clause 49(2)(b), the defence of reasonable chastisement would not be available to a defendant charged with causing actual bodily harm under s. 47 Offences Against the Person Act 1861. It therefore seems to us to be likely that the new clause will be considered by the Committee of Ministers to satisfy the obligation to adopt general measures which will prevent a future repetition of the specific violation found by the Court in A.

135. Whether the effect of the new clause is that the defence of reasonable chastisement will never be available as a defence to offences concerning treatment or punishment which is contrary to Article 3, however, is not apparent from the face of the clause itself. The defence remains available in relation to common assault. On current prosecution practice, it appears that common assault is normally charged when injuries amount to no more than grazes, minor bruising, reddening of the skin, scratches, superficial cuts, or a black eye.[147] In our view it cannot be assumed that such injuries are necessarily below the minimum level of severity required for Article 3 to apply. Indeed, we think that the deliberate infliction of such injuries on a child is very likely to be considered inhuman or degrading treatment or punishment contrary to Article 3. Without more, therefore, the new clause itself would not necessarily be sufficient to satisfy the Committee of Ministers that English law now provides children with adequate protection against treatment or punishment which is contrary to Article 3.

136. However, the Attorney General informed the House of Lords that the DPP intends to make certain changes to the charging standard which will have the effect that where serious aggravating features exist, such as the vulnerability of the victim, cases in which the level of injuries would usually lead to a charge of common assault could more appropriately be charged as actual bodily harm. The effect will be that where a child has been assaulted by an adult, leaving grazes, scratches, abrasions, minor bruising, swelling, superficial cuts or a black eye, the offence charged will in future usually be assault occasioning actual bodily harm rather than common assault. This will bring the distinction between common assault and other more serious offences more closely into line with the distinction between treatment which crosses the Article 3 threshold and that which does not. If the proposed change is implemented as indicated by the Attorney General, it is likely that in all cases concerning treatment which crosses the Article 3 threshold a more serious offence than common assault will be charged, with the result that the reasonable chastisement defence will not be available in relation to such treatment.

137. Whether the combination of the new clause 49 and the promised change in the DPP's charging standard will satisfy the Committee of Ministers that UK law now provides sufficient protection for children against treatment in breach of Article 3 is impossible to predict with certainty. The Committee of Ministers will have to decide whether the law now provides the "effective deterrence" required by the Court in light of the new clause 49 and the new charging standard. The degree of uncertainty created by the new charging standard, for example over whether reddening of the skin will be charged as a common assault or an assault occasioning actual bodily harm, will be relevant to that question. Until the new charging standard is published it is difficult for us to form a final view about whether the law now complies with the judgment in A v UK. However, on the assumption that the proposed changes to the CPS charging standards are implemented, so that assaults on a child causing grazes, scratches, abrasions, minor bruising, swelling, superficial cuts, more than transitory reddening of the skin or a black eye will normally be charged as assault occasioning actual bodily harm rather than common assault, we conclude that the combination of the new clause and the new charging standard may well be considered sufficient to satisfy the UK's obligation to comply with the judgment of the European Court of Human Rights in A v UK, because it makes the defence unavailable in relation to treatment or punishment which is contrary to Article 3.

Compatibility with Convention Rights

138. A separate question which arises is whether the new clause gives rise to any risk of a fresh finding of incompatibility with any Convention rights. The new clause preserves the defence of reasonable chastisement in relation to the offence of common assault. It therefore does not prohibit all corporal punishment of children. Physical rebukes to children are still capable of being lawfully made and may provide a defence to a charge of common assault. The question is whether, even assuming that the new clause complies with the judgment in A v UK, there is nevertheless a risk of a fresh finding of incompatibility with the Convention.

139. It is clear that corporal punishment of children is not per se a violation of Article 3 ECHR as it is currently interpreted. In Costello-Roberts v UK, for example, the Court found that the punishment of a seven year old consisting of three smacks on the buttocks, through shorts, with a soft-soled shoe causing no visible injury did not attain the minimum level of severity to amount to a violation of Article 3.[148] The Court in A v UK examined the circumstances of the case in some detail in order to determine whether the level of severity of the punishment of the child was sufficient to constitute inhuman or degrading treatment. That would not have been necessary if corporal punishment amounted to a breach of Article 3 per se. The Commission in A made this explicit: having found that English law failed to provide the child with adequate and effective protection against corporal punishment which in the circumstances was degrading within the meaning of Article 3, it said that it—

… would emphasise that this finding does not mean that Article 3 is to be interpreted as imposing an obligation on States to protect, through their criminal law, against any form of physical rebuke, however mild, by a parent of a child.[149]

140. The question remains whether the continued availability of the defence of reasonable chastisement in relation to common assault might be incompatible with Article 8 even if not incompatible with Article 3 as presently interpreted, because it provides inadequate legal protection for children's physical integrity. There is a clear precedent for a finding of a breach of Article 8 where the criminal law does not include an offence which is necessary in order to protect vulnerable people against exploitation: in X and Y v The Netherlands, the Court held that there had been a violation of the right to physical and moral integrity under Article 8 because the criminal law failed to provide adequate protection for mentally handicapped people against sexual abuse.[150] However, in the context of corporal punishment of children, the Court has expressly left open the question whether disciplinary measures which did not breach Article 3 could nevertheless breach Article 8.[151]

141. The trend in other international monitoring bodies, including the Committee on the Rights of the Child, is increasingly to emphasise the human dignity of the child as the foundational value in the protection of children's rights, and to recognize a child's right to physical integrity. These developments, which we consider further below, are likely increasingly to influence the Court of Human Rights in its interpretation of Convention standards in cases concerning children. The Court is increasingly referring to the CRC in the course of its judgments in such cases: in Sahin v Germany, for example, the Court recently said "the human rights of children and the standards to which all governments must aspire in realizing these rights for all children are set out in the Convention on the Rights of the Child".[152] Although the Court has yet to address the gaps between the ECHR's protection for the rights of children and that provided by the CRC, we think it is likely, given the near-universal acceptance of the standards contained in the CRC, that the Court will begin to close the gaps in protection by interpreting Convention standards in light of the CRC, and that, eventually, the continued availability of the defence of reasonable chastisement may be held to be incompatible with Convention rights.

142. We noted above that the claim of discrimination in the enjoyment of rights was not pursued in A v UK. However, as we commented in our report on the CRC, there is no defence in UK law that a "reasonable" degree of physical assault on adults is permissible.[153] Article 2 CRC requires States to "take all appropriate measures to ensure that the child is protected against all forms of discrimination". In maintaining this distinction between the protection offered to children and adults by the law on assault, the UK position clearly requires justification. Such justification needs to be made in the context of the clear presumption that children, who are more vulnerable to violence for the most part than adults, would generally be assumed to deserve greater, rather than lesser protection from assault. As we said in another Report last year, in important respects children are not as equal as adults.[154] Children are vulnerable to exploitation and oppression in ways that adults are not. They need protection, including from themselves, but it is certainly not self-evident that such protection requires them to be deprived of the protection that the law offers to everyone else. We therefore think it is likely that in a future case before the European Court of Human Rights, the UK will be required under Article 14 ECHR to justify the less favourable treatment of children under the law of common assault.

143. We conclude that, on the current state of Convention law, there is no present incompatibility between UK law, as amended by the new clause 49, and Convention rights. We consider that, in light of recent developments in the interpretation of other international instruments by the relevant monitoring bodies, and the increasing tendency of the Court of Human Rights to look to the CRC as a source of standards concerning children, there is a risk that in a future case the European Court of Human Rights will find that the continued availability of the reasonable chastisement defence to the offence of common assault is in breach of a child's right to dignity and personal integrity under Article 3, their right to physical integrity under Article 8, and/or their right not to be discriminated against compared to adults in relation to their enjoyment of those rights on grounds of their age. No such incompatibility exists at present, however.

Compatibility with the UN Convention on the Rights of the Child

144. When we concluded in our Report on the UN Convention on the Rights of the Child that retaining the defence of reasonable chastisement was incompatible with the UK's international obligations, we did so on the basis that the CRC, and in particular Article 19, requires the UK to prohibit all physical punishment of children in the family.

145. In the course of the Lords debate on new clause 49, however, it was argued on behalf of those supporting the amendment that the new clause meets the UK's obligations under the CRC, which does not go so far as to require states to introduce legislation "criminalizing" all parental smacking of children.[155]

146. This is an argument that we did not expressly consider at the time of our earlier Report. In view of the obvious importance of this matter, we have revisited the assumption made in our earlier Report, by going back to reconsider all of the relevant materials in order properly to advise Parliament whether the new clause 49 satisfies the UK's obligations under the CRC, or falls short of fulfilling those obligations.

The relevant provisions of the CRC

147. The two most relevant provisions of the CRC are Articles 19 and 37(a).

148. Article 19 CRC contains the obligation to take measures to protect children from all forms of physical or mental violence. It provides, so far as relevant:

19. 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.

19.2 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 identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment, described heretofore, and, as appropriate, for judicial involvement.

149. Article 37 contains the equivalent of Article 3 ECHR:

37. States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

Interpretation of the CRC in Reports of the Committee on the Rights of the Child

150. The UN Committee on the Rights of the Child was established under Article 43 CRC "for the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention". States Parties submit to the Committee "reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights".[156] The Committee considers such reports from states and itself reports to the General Assembly, through the Economic and Social Council.[157] The Committee may make suggestions and general recommendations to States Parties in its reports.[158]

151. The Committee on the Rights of the Child has consistently stated that the CRC requires prohibition of all corporal punishment of children, including in the home. In its February 1995 Concluding Observations on the United Kingdom, the Committee observed—

16. The Committee is disturbed about the reports it has received on the physical and sexual abuse of children. In this connection, the Committee is worried about the national legal provisions dealing with reasonable chastisement within the family. The imprecise nature of the expression of reasonable chastisement as contained in these legal provisions may pave the way for it to be interpreted in a subjective and arbitrary manner. Thus, the Committee is concerned that legislative and other measures relating to the physical integrity of children do not appear to be compatible with the provisions and principles of the Convention, including those of its articles 3, 19 and 37. …

31. The Committee is also of the opinion that additional efforts are required to overcome the problem of violence in society. The Committee recommends that physical punishment of children in families be prohibited in the light of the provisions set out in articles 3 and 19 of the Convention. In connection with the child's right to physical integrity, as recognized by the Convention, namely in its articles 19, 28, 29 and 37, and in the light of the best interests of the child, the Committee suggests that the State Party consider the possibility of undertaking additional education campaigns. Such measures would help to change societal attitudes towards the use of physical punishment in the family and foster the acceptance of the legal prohibition of the physical punishment of children.[159]

152. In its October 2002 Concluding Observations on the UK, the Committee on the Rights of the Child made further comment and recommendations about corporal punishment of children within the family. It said:

35. … In light of its previous recommendation (ibid. [1995 Observations], para. 31), the Committee deeply regrets that the State Party persists in retaining the defence of 'reasonable chastisement' and has taken no significant action toward prohibiting all corporal punishment of children in the family.

The Committee is of the opinion that governmental proposals to limit rather than to remove the 'reasonable chastisement' defence do not comply with the principles and provisions of the Convention and the aforementioned recommendations, particularly since they constitute a serious violation of the dignity of the child. Moreover they suggest that some forms of corporal punishment are acceptable and therefore undermine educational measures to promote positive and non-violent discipline.

36. The Committee recommends that the State Party:

a) with urgency adopt legislation throughout the State Party to remove the 'reasonable chastisement' defence and prohibit all corporal punishment in the family and in any other contexts not covered by existing legislation;

b) promote positive, participatory and non-violent forms of discipline and respect for children's equal right to human dignity and physical integrity, engaging with children and parents and all those who work with and for them, and carry out public education programmes on the negative consequences of corporal punishment.

153. The argument of the proponents of the new clause 49 is that there is no incompatibility with Article 19 CRC because it deliberately leaves a wide area of discretionary judgment to the state to choose the appropriate means of providing protection against violence, not only through legislation but also through administrative, social and educational measures. It is therefore open to a state to use a combination of legislative and other means such as public education campaigns to provide the necessary protection for children. Neither Article 19 nor Article 37(a) impose an obligation to pass legislation criminalizing all parental hitting of children, including even "disciplinary acts of battery that cause no mental or physical harm".

Conclusion on compatibility with the CRC

154. We have given this argument very careful consideration. We accept that there is nothing on the face of the CRC which requires states to ban corporal punishment in the family. We also accept that Article 19 on its face leaves a degree of discretion to states to decide what type of measures, or combination of measures, to adopt in order to protect children from violence.

155. However, we find it impossible to avoid the conclusion that the interpretation of Article 19 by the Committee on the Rights of the Child is unequivocal: corporal punishment is a serious violation of both the dignity and the physical integrity of the child and the "appropriate" measures which States are required to take in order to protect children from all forms of physical or mental violence include both legislative measures prohibiting all corporal punishment within the family and public education programmes. We consider this to be clear from:

a)  para. 31 of the 1995 Concluding Observations on the UK which envisages educational measures in addition to a legal prohibition of physical punishment in families ("such measures would help to … foster the acceptance of the legal prohibition of the physical punishment of children");

b)  paras 35 and 36 of the 2002 Concluding Observations on the UK, which show the Committee to consider legal prohibition and educational measures to be complementary (anything less than removal of the reasonable chastisement defence will "suggest that some forms of corporal punishment are acceptable and therefore undermine educational measures to promote positive and non-violent discipline").

156. We do not think that the very clearly expressed views of the Committee on the Rights of the Child can be ignored. As the only body charged with monitoring compliance with the obligations undertaken by States in the CRC, its interpretations of the nature and extent of those obligations are authoritative. In our view, the Committee has consistently made clear that corporal punishment of children is a serious violation of the child's right to dignity and physical integrity, and that states must both introduce a legislative prohibition of such punishment at the same time as measures for educating the public about the negative consequences of corporal punishment. In the light of this, we do not consider that there is any room for discretion as to the means of implementing Article 19 CRC as interpreted by the Committee on the Rights of the Child: it requires the reasonable chastisement defence to be abolished altogether.

ICESCR and European Social Charter

157. We also note that the Committee's consistent recommendation that corporal punishment of children be prohibited has influenced the monitoring bodies of other human rights treaties by which the UK is bound.

158. The UN Committee on Economic, Social and Cultural Rights has interpreted the International Covenant on Economic, Social and Cultural Rights as imposing the same obligation to prohibit physical punishment of children in families. In its Concluding Observations on the UK of May 2002, it commented—

36. Given the principle of the dignity of the individual, which provides the foundation for international human rights law (see paragraph 41 of the Committee's General Comment No. 13) and in the light of article 10.1 and 10.3 of the Covenant, the Committee recommends that the physical punishment of children in families be prohibited, in line with the recommendations of the Committee on the Rights of the Child (see paragraph 31 of the 1995 concluding observations of that Committee).

159. The European Committee of Social Rights, which monitors compliance with the European Social Charter, has also interpreted the relevant provision[160] of that instrument as requiring a prohibition of physical punishment of children, in light of the position under the CRC. In its most recent Conclusions on the UK's compliance with the relevant provision of the Charter, the Committee

… notes that not all forms of corporal punishment are prohibited within the family. The Committee refers to its general observations on Article 17 in the General Introduction and decides to defer its conclusion on this point pending more information from the British Government on the situation and on its intentions in this regard.[161]

160. In the "General Observations" referred to in its Conclusions on the UK, the Committee stated that, whereas it had not previously criticised any Contracting Party for not clearly prohibiting corporal punishment of children, it had now re-examined the implementation of Article 17 of the European Social Charter in the light of national legislation and international conventions.[162] After reviewing those developments, it said:

The Committee attaches great importance to the protection of children against any form of violence, ill-treatment or abuse, whether physical or mental. Like the European Court of Human Rights it emphasises the fact that children are particularly vulnerable and considers that one of the main objectives of Article 17 is to provide adequate protection for children in this respect … 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 otherwise be achieved. Moreover, in a field where the available statistics show a constant increase in the number of cases of ill-treatment of children reported to the police and prosecutors, it is evidence that additional measures to come to terms with this problem are necessary … For these reasons, the Committee considers that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It furthermore considers that any other form of degrading punishment or treatment of children must be prohibited in legislation and combined with adequate sanctions in penal or civil law.

161. We conclude that, although clause 49 achieves a greater degree of compatibility with the UK's obligations under the CRC by restricting the scope of the reasonable chastisement defence, by preserving it as a defence to common assault it does not achieve full compatibility with the UK's obligations under the CRC as interpreted by the UN Committee on the Rights of the Child, or under the ICESCR, as interpreted by the Committee on Economic, Social and Cultural Rights, or under the European Social Charter, as interpreted by the European Committee of Social Rights.

Whether there is any conflict between the UK's international obligations

162. During the debate on the reasonable chastisement amendment in the House of Lords, two human rights arguments were made in support of restricting the scope of the reasonable chastisement defence rather than abolishing it altogether:

i)  that legal certainty requires a partial rather than a total repeal of the defence; and

ii)  that a complete ban on corporal punishment within the family would constitute a disproportionate interference with family life.

163. We accept the possibility that international obligations may conflict and that, as a matter of Convention law, if there is a conflict between ECHR obligations and other subsequently assumed international human rights obligations the ECHR obligations prevail.[163] We have therefore considered whether there is any conflict between the UK's obligation to secure protection for Convention rights and its obligations under the CRC, ICESCR and European Social Charter which would prevent it from implementing the recommendation of the Committee on the Rights of the Child.

Legal certainty

164. Proponents of the new clause argued that considerations of legal certainty militated in favour of a partial repeal of the reasonable chastisement defence rather than a complete repeal. A total prohibition of corporal punishment, it was argued, would give rise to unacceptable uncertainty because the question of where to draw the line between "light smacking" that ought not to be criminalized and more heavy-handed smacking which should be criminal would be left to the discretion of the prosecuting authorities. This would lead to unacceptable uncertainty about the scope and definition of the law. By contrast, it was argued, the partial repeal of the reasonable chastisement defence provided greater legal certainty by clarifying that parents would only be liable to prosecution if they caused their child "harm".

165. Legal certainty is clearly required by human rights law. Under the ECHR, interferences with liberty under Article 5 must always be "lawful", which means having a legal basis which is sufficiently accessible, precise and foreseeable, such as to enable individuals to foresee the consequences of their action. Similarly, interferences with the right to respect for home and family life must be "in accordance with the law" under Article 8(2), which incorporates the same requirements of foreseeability and accessibility. The guiding principle is that individuals must be able to regulate their conduct with a reasonable degree of certainty as to the legal consequences of acting one way rather than another.

166. We have considered this argument carefully but we are not persuaded either that a complete prohibition of corporal punishment fails to provide a reasonable degree of legal certainty, or that new clause 49 provides any greater degree of legal certainty.

167. There is general agreement that the present law is unsatisfactory because it leads to too much uncertainty about what exactly constitutes "reasonable chastisement". In our view the new clause perpetuates this uncertainty, because it requires proof of harm and there is a great deal of uncertainty about what degree of harm is required. For example, will hitting resulting in a reddening of the skin be charged as common assault or actual bodily harm, and for how long need it subsist in order for it to cross the necessary threshold?[164]

168. We consider that a total prohibition of corporal punishment provides a greater degree of legal certainty than either the present law or the new clause restricting the scope of the reasonable chastisement defence. Complete repeal sends a very clear message that any parent who smacks their child is liable to prosecution. Whether they will in fact be prosecuted will of course depend on how the DPP exercises his prosecutorial discretion in such cases. We do not consider the mere existence of this discretion to be incompatible with the requirements of legal certainty. A degree of prosecutorial discretion is inevitable in relation to all criminal offences. The enforcement of the law of assault between adults already requires prosecutorial discretion to be exercised in individual cases. If this is compatible with the requirements of legal certainty (and there is no suggestion that it suffers from a lack of legal certainty), we find it difficult to see why applying the same law as between adults and children is any less legally certain. We also note that significant changes to the charging standard by the DPP, which has the effect of making certain categories of case more serious than before, is not regarded by the proponents of the new clause as contrary to the requirements of legal certainty, despite the fact that these changes will be brought about not by Parliament making a policy choice but by an exercise of prosecutorial policy-making.

169. We therefore do not agree that abolishing the defence of reasonable chastisement offends the principle of legal certainty. We are not persuaded that abolishing the defence leaves the scope and definition of the law to the discretion of the prosecuting authorities. The scope of the law will be clear: all physical assaults by one person on another will be treated equally, and will be liable to prosecution taking account of the circumstances of each individual case. The prosecutor will not be left to define the law, any more than he is left to define the law of assault as it applies between adults. This will involve the ordinary exercise of prosecutorial discretion.[165] As the DPP said in evidence, "the reality is that, just as most minor assaults against adults are not prosecuted, I suspect most minor assaults against children would not be either." Technically, any adult who taps another adult on the shoulder without that person's consent is liable to prosecution for assault. We are not aware of any practice on the part of the CPS of bringing inappropriate prosecutions for technical assault between adults, or of any single instance of such a prosecution. The application of a criminal law which is very broad in scope is properly regulated through the exercise of prosecutorial discretion. The same would be true of the application of the same law if its protection were extended to children within the family.

170. We also agree with the view of the European Committee of Social Rights, in its General Observations referred to above, that a complete prohibition achieves greater legal certainty than a partial prohibition—

To prohibit any form of corporal punishment of children is an important measure for the education of the population in this respect in that it gives a clear message about what society considers to be acceptable. It is a measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable corporal punishment and what is not.

171. There is in our view no reason rooted in considerations of legal certainty which should prevent implementation of the recommendation of the Committee on the Rights of the Child that the reasonable chastisement defence be abolished.

Interference with family life

172. Article 8 ECHR guarantees respect for private and family life, and requires interferences to be justified by a pressing social need. The argument by proponents of the new clause is that abolishing the defence of reasonable chastisement altogether will lead to disproportionate interference with family life.

173. This question has already been answered by the European Commission of Human Rights, in Seven Individuals v Sweden.[166] Sweden amended its criminal law so as to make the law of assault which applies between adults apply to children also. This extension of the law of assault was challenged by parents who claimed that the scope of the criminal law of assault failed to respect their right to respect for private and family life. The Commission rejected the complaint as manifestly ill-founded and therefore inadmissible. It held—

… the applicants have not shown that the provisions of Swedish law criminalizing the assault of children are unusual or in any way draconian. The fact that no distinction is made between the treatment of children by their parents and the same treatment applied to an adult stranger cannot, in the Commission's opinion, constitute an 'interference' with respect for the applicant's private and family lives since the consequences of an assault are equated in both cases.

Nor does the mere fact that legislation, or the state of the law, intervenes to regulate something which pertains to family life constitute a breach of Article 8(1) unless the intervention in question violates the applicants' right to respect for their family life. The Commission finds that the scope of the Swedish law of assault and molestation is a normal measure for the control of violence and that its extension to apply to the ordinary physical chastisement of children by their parents is intended to protect potentially weak and vulnerable members of society.[167]

174. Although this is a relatively old inadmissibility decision of the Commission, and therefore by no means entirely disposes of the question, we think it likely that the Court of Human Rights would today reach the same conclusion in any similar Article 8 challenge to a law which removed the defence of reasonable chastisement. Since 1982 when this case was decided, the Convention on the Rights of the Child has been adopted and almost universally accepted, and, for the reasons given above, we consider that the Court of Human Rights would be influenced by the content of the Convention's protections for children, and the Committee's interpretation of those provisions.

175. There is therefore in our view no reason rooted in considerations of disproportionate interference with family life which should prevent implementation of the recommendation of the Committee on the Rights of the Child that the reasonable chastisement defence be abolished.

Conclusion

176. We have considered whether there is any conflict between the UK's obligations under the CRC, ICESCR and European Social Charter on the one hand and its obligations under the ECHR on the other which would prevent it from complying with the recommendation of the CRC Committee with regard to the corporal punishment of children. We conclude that there is not.

177. We therefore recommend that Clause 49 of the Bill be amended as follows:

  Replace subsection (1) with the following new subsection—

'(1) Reasonable chastisement is not a defence to any charge involving battery of a child.'.

  Leave out subsection (2).

  In subsection (3), leave out the words 'causing actual bodily harm to the child'.

Leave out subsection (4).


130   Tenth Report, Session 2002-03, op cit. Back

131   The European Court of Human Rights in A v UK (1999) 27 EHRR 611; the UN Committee on the Rights of the Child in its Concluding Observations on the UK, October 2002; the UN Committee on Economic, Social and Cultural Rights, May 2002; and the European Committee of Social Rights, 2001. Back

132   Tenth Report, Session 2002-03, op cit., paras. 94-111. Back

133   ibid., para. 111. Back

134   Twelfth Report, Session 2003-04, op cit., paras. 1.32-1.34. Back

135   New clause 49. The amendment was carried by 226 votes to 91. Back

136   Under ss. 18 and 20 Offences against the Person Act 1861 ("OAPA 1861") (new clause 49(2)(a)). Back

137   Under s. 47 OAPA 1861 (new clause 49(2)(b)). Back

138   The amendment was defeated by 250 votes to 75. Back

139   Under s. 47 OAPA 1861. Back

140   ibid., para. 21. Back

141   ibid., para. 22. Back

142   ibid., para. 27. Back

143   ibid., para. 28. Back

144   ibid., para. 24. Back

145   R v H [2001] EWCA Crim 1024. Back

146   Under Article 46 ECHR. Back

147   Lord Goldsmith, HL Deb., 5 July 2004, col. 563. Back

148   (1995) 19 EHRR 112. Back

149   A v UK, Commission Opinion, para. 55, (1999) 27 EHRR 611 at 624.Only one member of the Commission, Mr. J. Loucaides, was of the view that corporal punishment of children, regardless of the degree of its severity or of the injuries caused, is by its very nature inhuman and degrading treatment: see his Concurring Opinion, ibid. at 627-628. Back

150   (1986) 8 EHRR 235.One member of the Commission in A v UK would have preferred to deal with that case under Article 8 rather than Article 3: see Concurring Opinion of Mr. E.A. Alkema (1999) 27 EHRR 611 at 628-629. Back

151   See for example Costello-Roberts, above. In A v UK, the Court, having found a violation of Article 3, found it unnecessary to examine whether the inadequacy of the legal protection provided to the child also breached his right to respect for his private life under Article 8. Back

152   Application 30943/96, July 2003, at paras 39-41, 64. Back

153   Tenth Report, Session 2002-03, op cit., para 96. Back

154   Ninth Report, Session 2002-03, op cit., para 42. Back

155   HL Deb., 5 July 2004, cols. 527-528. Back

156   United Nations Convention on the Rights of the Child, Article 44(1). Back

157   ibid., Article 44(5). Back

158   ibid., Article 45(d). Back

159   Concluding Observations of the Committee on the Rights of the Child: United Kingdom, February 1995 printed in our Tenth Report, Session 2002-03, op cit., Annex 6. Back

160   Article 17 European Social Charter. The full text of the European Social Charter can be found at http://conventions.coe.int/Treaty/en/Treaties/html/035.htm Back

161   European Committee of Social Rights, Conclusions XV-2 (United Kingdom) (2001). Back

162   ibid., Conclusions XV-2, Volume 1, General Introduction (2001). Back

163   See Matthews v UK (1999) 28 EHRR 361 at paras 31-35 (the obligation to "secure" Convention rights in Article 1 ECHR means that states are responsible under the Convention for the consequences for Convention rights of international treaties into which it subsequently enters). Back

164   See Lord Goldsmith, HL Deb., 5 July 2004, col. 563. Back

165   The Director of Public Prosecutions was quoted in The Times on 12 July 2004 as saying "Prosecutors have to make these decisions every day; if someone assaults you, they have to decide whether to charge a common assault, if there is no injury, or a more serious assault." In our view exactly the same can be said of the decision whether to charge for common assault or not to charge at all. Back

166   (1982) 29 DR 104 (E Comm). Back

167   ibid., at p. 114. Back


 
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