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Protecting or punishing children: physical punishment, human rights and English law reform

Published online by Cambridge University Press:  02 January 2018

Heather Keating
Heather Keating*
Affiliation:
University of Sussex
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Abstract

This paper assesses the current state of English criminal law in relation to the use of physical force by parents as a means of disciplining their children. It does so in the light of the Children Act 2004, the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 3, pressure from bodies such as the United Nations Committee on the Rights of the Child and the law in other parts of Europe. It acknowledges that parents should have a large degree of autonomy in relation to parenting. However, the defence of ‘discipline’ or ‘reasonable chastisement’ is outdated, vague and potentially dangerous to children. It is argued that the response of the British Government to criticism of our law has been far from satisfactory. The reform which was incorporated into the Children Act 2004 as a result of pressure upon the government aims to avoid criminalising ‘ordinary families’ for minor smacks. However, the statement of principle is so diluted that parents might understandably be confused and enforcement may be difficult. Moreover, the pressure for reform has continued unabated. The paper concludes that what is needed is an outright ban, combined with an educational campaign, which can lead the way in changing the cultural tradition of physical punishment.

Type
Research Article
Information
Legal Studies , Volume 26 , Issue 3 , September 2006 , pp. 394 - 413
Copyright
Copyright © Society of Legal Scholars 2006

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References

1. Cm 5860 (2003).

2. The Victoria Climbié Inquiry: Report of an Inquiry by Lord Laming (London: TSO, 2003).

3. Above n 1, para 1.3.

4. House of Commons Health Committee The Victoria Climbié Report Sixth Report, HC 570 (HMSO, 2003) para 55.

5. Although see Re S (J) (A Minor) (Care or Supervision Order) [1993] 2 FLR 919 (FD).

6. Above n 1, para 3.1.

7. The government might respond that this had been dealt with in Protecting Children, Supporting Parents: A Consultation Document on the Physical Punishment of Children (Department of Health, 2000) but it will be argued that this consultation exercise and its conclusions were seriously flawed.

8. Above n 4, para 55.

9. Committee on the Rights of the Child Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland (CRC/C/15/Add 354, 1995); Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland (CRC/15/Add 188, 2002).

10. See, eg, research conducted by Save the Children in Scotland Response to the Scottish Executive Consultation ‘The Physical Punishment of Children’ (2000), available at http://www.scotland.gov.uk/justice/familylaw/responses/physpunS-Z.pdf. Of 367 children surveyed, 76% agreed it was wrong for a parent or adult to hit a child. See also Willow, C It’s Not Fair: Young Person’s Reflections on Children’s Rights (London: The Children’s Society, 1999) pp 50–52 Google Scholar and C Willow and T Hyder It Hurts You Inside: Children Talking About Smacking (London: Children’s Rights Alliance, 2004).

11. R v Secretary of State for Education and Employment and Others, ex p Williamson and Others [2005] 2 AC 246 at [72] per Baroness Hale of Richmond.

12. It should be noted that care proceedings may be brought as well as or instead of criminal proceedings. See Children Act 1989, s 31 and, eg, Re S (J), above n 5; Re H (A Child: Care Order) [2003] EWHC 429 (Fam) (unreported) and Re B (Care Proceedings: Diplomatic Immunity) [2002] EWHC 1751 (Fam), [2003] Fam 16.

13. See, further, Fionda, J (ed) Legal Concepts of Childhood (Oxford: Hart Publishing, 2001)Google Scholar and Smart, C, Neal, B and Wade, A The Changing Experience of Childhood (Cambridge: Polity Press, 2001).Google Scholar

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15. In practice this offence is relied upon only in neglect cases (above n 7, para 3.10). Assaults and aggravated assaults are dealt with under the ordinary criminal law.

16. Now repealed. See below n 80 and associated text.

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18. Children Act 1989, s 3.

19. Hewer v Bryant [1970] 1 QB 357; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

20. See, further, Bainham, above n 17, pp 119–125.

21. R v Hopley (1860) 2 F & F 202 at 206. The facts were that a 14-year-old boy was beaten with a thick stick for 2 1/2 hours. He died from his injuries.

22. In Peebles v MacPhail 1990 SLT 245, a blow to the side of the head of a 2-year-old that knocked him over resulted in a conviction for assault.

23. In B v Harris 1990 SLT 208, a mother who hit her 8-year-old with a belt, leaving bruises, was acquitted of assault. However, in R v Smith (unreported) 2 November 1984 (transcript available from Marten Walsh Cherer), the Court of Appeal dismissed an appeal against a conviction of assault occasioning actual bodily harm upon a 6-year-old boy who had been hit with a belt, again leaving bruises.

24. A survey of 1600 parents conducted by MORI on behalf of the NSPCC revealed that 65% of parents stated that they had felt guilty for physically punishing their child: NSPCC Survey Shows Hitting Children Hurts Parents Too (8 May 2002), available at http://www.nspcc.org.uk/home/informationresources/hittingchildrenhurtsparentstoo.htm.

25. Below n 45 and associated text.

26. Northern Ireland Office of Law Reform Physical Punishment in the Home – Thinking About the Issues, Looking at the Evidence (Office of Law Reform, 2001) p 42.

27. R v East Sussex County Council, ex p R[1991] 2 FLR 358 as noted by Fortin, J Children’s Rights and the Developing Law (London: Butterworths, 2nd edn, 2003)Google Scholar p 277. The children were placed upon the child protection register but no further action was taken.

28. Under Art 7 of the Convention, an offence must be clearly defined although it has been accepted that some imprecision is inevitable; see, further, Ashworth, A Principles of Criminal Law (Oxford: Oxford University Press, 4th edn, 2003) pp 735–78.Google Scholar

29. (1999) 27 EHRR 611. See also Tyrer v United Kingdom (1979–80) 2 EHRR 1; Campbell and Cosans v United Kingdom (1981) 3 EHRR 531; Y v UK (1994) 17 EHRR 238 and Costello-Roberts v United Kingdom (1995) 19 EHRR 112.

30. Contrary to Offences Against the Person Act 1861, s 47.

31. See, further, Fortin, above n 27, pp 61–62.

32. The government had attempted to argue that the fact that there had been some successful (fewer than ten) prosecutions over the previous 30 years meant that children were protected.

33. (1995) 19 EHRR 112.

34. In effect, therefore, the trial judge in A had been at fault in merely telling the jury that the force used had to be reasonable without providing the jury with guidelines upon which to make that judgment.

35. Fortin, above n 27, p 280.

36. Department of Health, above n 7, para 1.5.

37. Ibid, para 2.14.

38. A large majority of respondents agreed with this statement, although only 9% of respondents agreed with the statement that it is sometimes necessary to use implements – canes, sticks, belts or slippers – to punish a naughty child (Annex A).

39. Barton, C Parental hitting – the responses to Protecting Children, Supporting Parents’ 2002 Fam Law 124 Google Scholar at 125.

40. Rather than as now, including those who act on behalf of parents (except in settings where physical punishment has been outlawed).

41. See the website available at http://www.doh.gov.uk/scg/pcspresponse, para 13. Overall, responses were divided between members of the public, the majority of whom favoured retention of the status quo, and organisations, nearly all of whom opposed all physical punishment.

42. Department of Health ‘Protecting Children and Supporting Parents’ Press Release 2001/524 (8 November 2001).

43. [2002] 1 Cr App R 7; see also A v United Kingdom (Human Rights: Punishment of Child) [2001] TLR 329.

44. Rogers, J A criminal lawyer’s response to chastisement in the European Court of Human Rights 2002 CrimLR 98 Google Scholar at 102.

45. Reasons, intentions and motives for punishment had also figured as relevant factors in the responses to the government consultation exercise, above n 7, para 32.

46. While the Court of Appeal regarded the list as an ‘appropriate and accurate reflection of the…law in the light of the Strasbourg jurisprudence’ (per Rose LJ at para [35]), the Northern Ireland Office of Law Reform described the addition of reasons as a ‘gloss on the A v UK factors which changes their meaning’: above n 26, pp 40–41. Fortin rightly comments that courts are not permitted to present decisions of the European Court of Human Rights with a gloss on them: above n 27, p 282.

47. Smith, R Hands-off parenting?”– towards reform of the defence of reasonable chastisement in the Uk 2004 CFLQ 261 Google Scholar at 265.

48. Rogers, above n 44, at 103. See also Smith, above n 47, at 265.

49. Rogers, above n 44, at 104.

50. Tenth Report of Session 2002–03, HL 117/HC 81, para 80.

51. Rogers, above n 44, at 110.

52. The defence would also fail if the child was incapable of understanding the reason for his punishment or incapable of amending his behaviour accordingly: ibid, at 110.

53. For further discussion of the law relating to duress, see Clarkson, CMV and Keating, HM Criminal Law: Text and Materials (London: Sweet and Maxwell, 5th edn, 2003) pp 325–350.Google Scholar

54. J Fortin ‘Children’s rights and the use of physical force’ [2001] CFLQ 243 at 246.

55. Newell, P Children are People Too (London: Bedford Square Press, 1989) pp 53–66 Google Scholar. See also Surveys and, in particular, self-report studies may not necessarily be completely accurate. However, given that parents may feel some reluctance to provide information it is possible that the true scale is even higher than that reported.

56. NSPCC, Press Release 21 March 2002.

57. Committee on the Rights of the Child (2002), above n 9, para 35.

58. See Tyrer v United Kingdom, above n 29; Campbell and Cosans v United Kingdom, above n 29; Y v UK, above n 29; Costello-Roberts v United Kingdom, above n 29; Committee of the Ministers of the Council of Europe Violence in the Family (1985), Recommendation No R (85)4, available at http://www.coe.int/com.instranet.instraservlet?command=com.instranet.CmdBlobGet&Dodd=686098&SecMode=1&Admin=O&usage = 4&InstranetImage=45233.pdf. and Discipline in Schools: Report of the Committee of Enquiry chaired by Lord Elton (London: TSO, 1989).

59. Amended by Schools Standards and Framework Act 1998, s 131. This legislation applies to nursery schools as well as to those providing education for children of compulsory school age and to independent schools as well as state schools.

60. [2005] 2 AC 246.

61. The reasoning of the House of Lords differs markedly from that of the Court of Appeal, which had taken the view that Art 9 was not breached because the school could invite parents into school to administer punishment.

62. See Sutton London Borough Council v Davis [1994] 2 WLR 721.

63. Residential care workers have been prohibited from smacking since 1991 (Children’s Homes Regulations 1991, SI 1991/1506, reg 8(2)).

64. Alan Milburn, Secretary of State for Health, 5 May 2003: The Day Care and Child Minding (National Standards) (England) Regulations 2003, SI 2003/1996. The Welsh Assembly and Scottish Parliament adopted Regulations prohibiting childminders from smacking in 2002.

65. Smith, above n 47, at 263.

66. Clause 43(3) of the Scottish Criminal Justice Bill 2002.

67. A sheriff admonished the father but no further punishment was imposed.

68. Evidence to the Justice 2 Committee, col 2271, meeting no 45, 27 November 2002.

69. In September 2002: Justice 2 Committee Report, 8th Report, SP Paper 645, paras 99–141.

70. Criminal Justice Act (Scotland) 2003, s 51. See also Northern Ireland Office of Law Reform, above n 26. For further detail on the Scottish reforms, see Smith, R ‘You can’t hit me now”: reforming the law of Scotland on the physical punishment of children’ (2002) 17 SLT 145.Google Scholar

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72. Durrent, J A Generation without Smacking: The Impact of Sweden’s Ban on Physical Punishment (London: Save the Children Fund, 2000 Google Scholar);

73. Ziegert, K The Swedish prohibition of corporal punishment: a preliminary report’ (1983) J of Law and the Family 917 Google Scholar at 921.

74. Edfelt, A The Swedish 1979 ban plus fifteen’ in Frehsee, D at al (eds) Family Violence Against Children (Berlin: Walter de Gruter, 1996 Google Scholar) p 27 at pp 31–31.

75. Boyson and Thorpe, above n 71, p 18.

76. Durrent, above n 72, pp 12–17.

77. Boyson and Thorpe, above n 71, pp 53 and 71.

78. Ignoring the views of many of its backbenchers: G Hinsliff ‘British parents set to lose right to smack children’ The Observer 16 November 2003. Late in 2003, David Hinchliffe had presented a Bill to Parliament which called for the abolition of the defence by the removal of s 1(7), the purpose of the exercise being to continue to raise awareness of the issue: Corporal Punishment of Children (Abolition) Bill No 185 2002-2003 (published 19 November 2003).

79. Joint Committee on Human Rights Scrutiny of Bills: Fifth Progress Report Twelfth Report of Session 2003–2004, para 1.33.

80. Baroness Finlay Hansard HL Debs, vol 661, col 891, 20 May 2004.

81. See, further, on the issue of restraint, Fortin, above n 54.

82. Hansard HL Debs, vol 663, cols 518–572, 5 July 2004. The vote was 250 to 75.

83. By 284 to 208 votes: the fact that Lord Lester introduced the amendment may well have been significant in garnering support for it.

84. The clause was carried by 284 to 208 votes. The amendment was rejected by 424 votes to 75.

85. The defence is also removed from proceedings involving cruelty to a child and also from civil proceedings (above n 12) where the harm caused amounts to actual bodily harm.

86. R v Miller [1954] 2 QB 282.

87. R v Chan-Fook [1994] 1 WLR 689. But charging standards now indicate that prosecutions under s 47 should be brought only when there are aggravating factors. See below n 105 and associated text.

88. The Daily Telegraph 3 November 2004.

89. Daily Mail 3 November 2004.

90. Earl Howe, winding up for the Conservatives in the House of Lords: Hansard HL Debs, vol 663, cols 553–555, 5 July 2004.

91. The removal of children from their homes in Cleveland on the basis of allegations of sexual abuse (based upon one equivocal piece of evidence) is one obvious example: Report of the Enquiry into Child Abuse in Cleveland 1987 Cm 412 (1988).

92. Article 8(2). See, further, Individuals v Sweden (Application No 8811/79) (unreported) (1982) 29 CDR 104 and Fortin, above n 27, p 283.

93. It is not even the case that this point has been held consistently in relation to physical punishment. Over 30 years ago, for example, it was decided that cultural differences cannot be used to justify punishment which is by the law of England excessive (R v Derriviere [1969] 53 Cr App R 637).

94. R v Secretary of State for Education and Employment, ex p Williamson, above n 11, at para [49] per Lord Nicholls of Birkenhead.

95. Henricson, C and Grey, A Understanding Discipline (London: National Family and Parenting Institute, 2001) p 32.Google Scholar

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97. Ibid, p 40.

98. Ibid, p 54.

99. Hansard HL Debs, vol 663, cols 532–535, 5 July 2004.

100. Henricson and Grey, above n 95, p 54.

101. See, further, Every Child Matters, above n 1, ch 3.

102. Hansard HL Debs, vol 663, cols 518–572, 5 July 2004.

103. Hansard HL Debs, vol 663, col 549, 5 July 2004.

104. R v Taylor and Glanville [1978] Crim LR 482.

105. Crown Prosecution Service Charging Standards, paras 1(vii), (viii) and 9(i).

106. Letter from Terence Grange, Chief Constable of Dyfed-Powys, Spokesperson for the Association of Chief Police Officers, cited in parliamentary debate (Hansard HC Debs, vol 426, col 243, 2 November 2004).

107. Hall, S Parents face dilemma after smacking vote The Guardian 6 July 2004.Google Scholar

108. ‘Jail threat for parents over smacking’ Daily Mail 6 July 2004.

109. Bainham, above n 17, p 498.

110. Joint Committee on Human Rights, Nineteenth Report of Session 2003–04, HL 161/HC 537, para 167.

111. See the website available at http://www.childrenareunbeatable.org.

112. It could, of course, be argued that the risk of driving dangerous physical punishment underground would exist with a complete ban. While this risk cannot be ruled out, this might be less likely in the face of a clear statement of principle that is currently so conspicuously absent.

113. Letter by 17 peers, The Guardian 5 July 2004.

114. Newell, above n 55, p 12.

115. Hansard HL Debs, vol 663, col 542, 5 July 2004.

116. Boyson and Thorpe, above n 71, p 13.

117. Above n 55.

118. Hansard HC Debs, vol 424, col 1011, 13 September 2004.

119. William, SIR Utting, spokesman for the Children are Unbeatable Alliance, The Guardian 4 March 2004.Google Scholar

120. European Committee of Social Rights Conclusions XVII-2 (United Kingdom) (2005) p 30, available at http://www.coe.int/t/e/human_rights/esc/3_reporting_procedure/2_recent_conclusions/1_by_state/UK_XVII-2.pdf.

121. Joint Committee on Human Rights, above n 110, para 141.

122. Ibid, para 88.

123. Letter to Kelly, Ruth, Secretary of State for Education, The Times 21 January 2006.Google Scholar

124. Joint Committee on Human Rights, Eighth Report of Session 2005–06, HL 104/HC 850, para 82.