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Earl Howe: My Lords, whatever the Government's decision on the commission's future, will the Minister confirm that its main functions of supplying staff to patients' forums and performance managing them to
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national quality standards are of central importance if there is to be proper scrutiny of the health service by patients?
Lord Warner: My Lords, we certainly accept that the commission's main functions are to support, fund and advise patients' forums and it is critical to their success that those functions continue to be discharged properly in the future.
Lord Warner: My Lords, the noble Baroness must have misheard me. I said that the Government were committed to patients' forums continuing into the future. We were discussing in the Question the position of the Commission for Patient and Public Involvement in Health.
Lord Grocott: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the University of Wales, Cardiff Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
(1) Battery of a child cannot be justified in any proceedings on the grounds that it constituted lawful punishment.
(2) Battery of a child is not unlawful if the act amounts to the use of reasonable force in order to
(a) avert an immediate danger to the child or any other person;
(b) avert an immediate danger to property; or
(c) prevent the commission of a crime, or an act which would be a crime if the child had reached the age of criminal responsibility.
(3) For the purpose of subsections (1) and (2) above "child" means a person under the age of 18.
(4) Section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under sixteen) is amended as follows.
(5) In subsection (7) at end insert "subject to subsection (8) below".
(6) After subsection (7) insert
"(8) Corporal punishment administered to a child cannot be justified in any proceedings on the ground that it was administered in pursuance of a right exercisable by virtue of subsection (7) above.
(9) For the purpose of subsection (8) above, administering corporal punishment to a child means doing anything for the purpose of punishing that child which would constitute unlawful battery."
(7) This section extends to England and Wales only."
The noble Baroness said: My Lords, the aim of the amendment is to give children the same protection from assault as adults currently enjoy, and yet allow parents to take actions needed to protect their child and others from danger. The issues behind this amendment go to the very heart of our own personal experiences as parents and children. Let me make it clear from the outset: I am not against disciplining
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children. I am known to be strict and have firm boundaries. I greatly appreciate the time that the Minister has spent with me and others, discussing this issue in depth.
We have legislated for equality of opportunity and against discrimination in our society. We protect in law all our citizens from batterybut not our children. We have failed to give children equal protection in law from assault. Today noble Lords are being asked to consider whether assaulting children is right, or whether the time has come to listen to the evidence from those countries that have taken steps to respect their children and acknowledge their human rights.
We insist on zero tolerance of domestic violence once someone is 18, but for those under one year old, our society accepts that more than half will be hit at least weekly by their parents14 per cent with moderate severityand for what? They are hit for being hungry, or for needing a nappy change or a cuddle. By the time children are four, the Department for Health's own data reveals 38 per cent are hit more than once a week, often moderately severely and behind closed doors in the privacy of the family home. They often do not know what they did to deserve the hit; they are being taught that the way to get someone to do what they want is to hit him. The Government's Social Exclusion Unit found that eight out of 10 child runaways cite family violence as the cause. As one child runaway said, "I was sick of my dad and his girlfriend hitting me".
Twelve days' ago, the Parliamentary Assembly of the Council of Europe noted that the European Court of Human Rights has found in successive judgments that corporal punishment violates children's rights under the Convention for the Protection of Human Rights and Fundamental Freedoms. Those decisions applied most recently within the family home; moreover, both the European Commissioner for Human Rights and the Court have emphasised that banning all corporal punishment does not breach the right to private or family life or religious freedom. The Association of Chief Police Officers, whose chairman has mailed me today to wish us good luck, and the Association of Directors of Social Services, have both issued statements in support of our amendments and have stated that they want to be directly involved in drawing up guidelines for handling reports against parents.
"any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. Striking a human being is prohibited in European society, and children are human beings. The social and legal acceptance of corporal punishment of children must be ended".
Children tell us how much smacking hurts them. It hurts them, not only physically but inside. They tell us that they think that very young children should never be hit and that it teaches a child a way in which to get
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control over someone else's behaviourso it is hardly surprising that they are the children that go on to hit others.
In Committee it was said that the kind of punishment that results in injury is clearly not reasonable chastisement and, as such, is already against the law. Sadly, however, there are cases to prove that point wrong. The very existence of the defence sends a clear message that hitting children is acceptable and lawful. Very few cases reach court because of the existence of the defence; the police, the Crown Prosecution Service, social workers, paediatricians and so on, know of the defence and so do not press cases. That means that many assaults remain hidden from the public documenting procedures. In fact, prevalence research reveals a huge problem of violence against children and the family.
The Government are increasingly forceful in ensuring that violence in other forms is cracked down on, yet appear to condone, by resisting equal protection, the silent epidemicthat 700,000 under-one year-olds are hit in the privacy of their home before language and reasoning develop. Well over 4 million children in England and Wales experience being hit more than once a week in the name of discipline, year on year. Although one adult parent cannot hit the other parent, 97 per cent of these parents can continue to hit their child, aged one to four years.
Amendment No. 106 would not create a new offence but would mean that any assault that would be classed as criminal assault if aimed at an adult would become a criminal assault if aimed at a child. That is what equal protection meansit is not new. Since Committee stage, the Association of Directors of Social Services has reaffirmed its strong support for equal protection. It has taken a policy decision to support this position, not because it has any interest in parents being prosecuted for trivial matters but because it believes that children should be afforded the same protection of the law as other citizens.
The association feels that the new clause would not lower the thresholds for assessing the risks of significant harm, but would go a long way towards removing existing legal ambiguities concerning the protection of children and the rights of parents and carers to inflict violence on children. Such assessment focuses on the needs of the child, predicated on the principle enshrined in the Children Act 1989 that, wherever possible, those needs are best served within the child's own family. They, like the vast majority of your Lordships, believe that children can and should be firmly disciplined and be subject to clear, consistent parental controls, but that can be achieved without inflicting violence on children.
I have carefully read the evidence of the Director of Public Prosecutions to the Joint Committee on Human Rights, as I fear that he has been widely and selectively misquoted. Just as most minor assaults against adults are not prosecuted, he suspected that most minor assaults would not be either. Such prosecutions would be very rare. But of course he emphasised that the far greater vulnerability of
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(6)children meant that he could not guarantee that it would never be in the public interest to prosecute in such cases, citing examples of particularly vulnerable children, such as a mentally handicapped child. The best interests of the child victim are invariably considered as part of the public interest test.
I encourage the minority who spoke in Committee on the perceived benefits of smacking to review all the research in the area. Overall, long-term outcomes of physical punishment in childhood show increased aggression and violent behaviour as a child and when adult; less capacity for empathy; less internalisation of moral aspects of discipline; increased probability of anti-social and criminal behaviour in adulthood, including spousal and/or child abuse; and evidence of compromised mental health.
Let us be clear, however. We do not expect to see research into the harmful effects of slapping women or mistreating elderly people in care homes. We assert their human right to the full protection of the law. We do not have to prove that smacking children is harmful to justify extending to them the protection that all other larger people take for granted. They share with us an equal human right to respect for their human dignity and physical integrity.
Research overwhelmingly supports equal protection. But let us not be diverted into the arguments that distract attention from the basic wrong that we have an opportunity to right. Children tell us that the hitting occurs behind closed doors, where no one can see. Some know that their parents are ashamed of it much of the time, while others live in fear, not knowing what today will be allowed and tomorrow will receive a clout. We know that the baby's brain, and hence personality and behaviour, develop in response to stimuli. Calm loving will develop a disciplined mind; chaotic, violent families teach violence to their children, and those are the children who go on to perform poorly at school, are less able to resolve conflict without violence and are more likely to end up in youth custody. The child learns that the best way to get people smaller than himself to do what he wants is to hit them.
We can reverse the trend. Respecting the human rights of children promotes their dignified personal development. Amendment No. 106 aims to prevent the escalation of battery into systematic abuse. Prevention is all. Our amendment gives a clear message to society that hitting is wrong. When visible physical injury occurs, it is too late. We have to grasp and pursue the principle and then set about ensuring that the law provides equal protection and is implemented in the best interests of children.
The new clause proposed in Amendment No. 106 has the support of 400-plus associations and people representing all elements of the child protection service that has signed up to the stated aim of the Children are Unbeatable! Alliancewhich is the aim of equal protection. They have not done so without careful
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thought. It is not an easy issue, but we have to move on as this huge body of professional opinion has already moved on in the light of evidence.
It seems absurd to say that equal protection is unworkable when children in 12 countries in Europejust over a fifth of Europe's childrenalready enjoy equal protection from assault, most recently in Romania and Ukraine. That is a fundamental human rights issue. Article 19 of the UN Convention on the Rights of the Child requires states to take appropriate legislative and other measures to protect the child from all forms of physical or mental violence while in the care of parents or others. The Committee on the Rights of the Child has told the UK twice with increasing emphasis that we must prohibit all corporal punishment. The European Committee of Social Rights takes the same position. Let us be clear. The child learns that the way to get someone to do what you want is to hit them, especially if they are smaller than you.
I am aware that Amendment No. 106B, which I will address briefly, seems seductive. It appears at first sight to help to prevent abuse, but it does not prevent children being assaulted. Amendment No. 106B takes away the defence of reasonable chastisement in the case of a statutory offence, as in subsection (2). However, it leaves parents able to justify common assaulthitting and hurtingas reasonable punishment. You would still need to prove bodily harm; that is, something to show. Yet considerable soft-tissue damage, including brain damage, can leave no external mark, no fracture on X-ray, and it can be very difficult to prove that it was related to the witnessed episode of battery. The physical force behind a smack is very seriously underestimated by over half of hitters. It does not prevent the repeated subtle physical punishment of children behind closed doors, which cleverly results in no visible bodily harm when the child is next with those who might spot it. That makes it very difficult, if not impossible, to bring proceedings. Our amendment stops assault, but explicitly recognises the importance of protecting children.
Amendment No. 106B gives a mixed message to the public. As it says, you can go on hitting children, then you have to pick and choose between offences, to know whether you were acting lawfully or unlawfully. Our amendment simply says that hitting children is wrong. I do not consider that Amendment No. 106B would satisfy our human rights obligations under the UN Convention on the Rights of the Child or the European Social Charter. The Committee on the Rights of the Child specifically emphasised in its report to the UK in October 2002 that proposals to limit rather than to remove the right to use corporal punishment do not comply with the principles and provisions of the convention. The committee stated that suggesting that some forms of corporal punishment are acceptable undermines educational measures to promote positive and non-violent discipline. The European Committee of Social Rights takes the same position.
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"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 the law was changed. If they don't change the law they will think 'Oh, well the child doesn't mind so we can just keep on doing it like we always have'".
Children should have equal protection under the law on assault. That is the effect of the new clause proposed by Amendment No. 106, with appropriate reassurance that parents can use physical actions to protect and restrain children, protect property and prevent the commission of a crime. As the European Convention on Human Rights and the Court have emphasised, banning corporal punishment does not breach the right to private or family life. I beg to move.
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