Thursday, 9 August 2007

Introductory Remarks on Section 58

The change in the law which introduced Section 58 was brought about by several inexcusable misconceptions in the first place. Firstly, the debate in Parliament and the reporting of that debate suggested that there had been misuse of the reasonable chastisement defence of such a level as to require legislative change.
In fact the CPS figures have never borne out this misinformation and were never introduced into the debate. Had they been, it would have been noted that there were just 12 cases in which the defence was raised in the two years prior to the 2004 Children Act. This is not at all suggestive of a significant misuse of the defence. Neither is it an adequate basis on which to change a law which affects every child and parent in the UK whether they use corporal punishment or not. Since the coming into force of the provisions of the 2004 Children Act there have been just five cases identified by the CPS in which the defence was raised. Again, no general conclusions can be drawn from such small figures.

The second and associated misconception which led to the change in the law is outlined in Section 2.2 of this Consultation Paper where it is said that
""The case of A v. UK highlighted a widespread feeling that public opinion about what constituted “reasonable” punishment had changed and the law as it was at the time had not kept pace with this."
No evidence is cited for this contention. It is a matter of great certainty that public opinion was and is almost totally ignorant of "A v UK". If widespread feeling is taken to mean so called children's rights organisations and anti smacking campaigners then this contention might be true. But we repeat there is no evidence to suggest that public opinion about what constituted reasonable punishment had changed.

1 To what extent has section 58 improved legal protection for children in cases of alleged assault by their parents?

Our first comments relate to the imprecision of this question. The use of the word "parents" is here misleading and unhelpful to those responding to the question as it is clear that it is not only parents but those authorised by parents who may physically chastise a child. Foster parents, uncles, aunts, grandparents, family friends, baby sitters etc. may all be entitled under a variety of circumstances to use the "reasonable chastisement" defence. The second comment relating to the phrasing of the question itself concerns the use of the term "alleged assault". We take it that this question is not concerned with cases of "alleged assault" but rather with assault that has been defended on the basis of "reasonable chastisement". If there is a dispute about whether the assault actually took place then the term "alleged assault" may be the appropriate term to use. However, where the defence of reasonable chastisement is used then there is no "alleged assault" but rather an admitted assault which the defendant claims is justifiable. We trust that it is not nitpicking to point out that a consultation which is concerned with the perception and clarity of the law in this area ought itself to be very clear if a proper and informed response is to be forthcoming from consultees.

As to the substantive matters raised in the question, we believe that Section 58 of the 2004 Children Act does not and could not improve legal protection for children in cases of alleged assault by their parents. It could not improve legal protection unless this refers to the prevention of future assaults against the child. If a parent were prosecuted successfully for causing Actual Bodily Harm in the course of physically punishing a child then it could be argued that the child might be protected from future assaults if the deterrent effect on the parent/adult were sufficient.

It is believed by the Government that Section 58 provides children with protection from assault by those who before its coming into force would have had available to them the reasonable chastisement defence. If this is the case the protection is simply an upholding and vindicating the child's "right" to not be unjustifiably assaulted in a court of law and after the event. On the other hand it is possible that the protection of the child here means the protection from possible future assaults that may have taken place but for the deterrent effect of section 58. The Government's aim in this case is to provide clear guidance about unjustifiable assaults against children to the courts and to the public in general. If the latter is what is being aimed at in the question then much work needs to be done to ascertain the extent to which children are so protected. It is moreover to be doubted whether the information which could settle this question presently exists in a form which can give sufficiently clear data for determining whether the law is working or whether it ought to be changed or not.

Furthermore Section 58 cannot be read in isolation from the Charging Standards now associated with it. These directions produced by the CPS inevitably retain an element of uncertainty at the heart of the question of the defensibility of physical punishment of children by stating that grazes etc will normally be appropriately charged as ABH. The aim of parliament was to give certainty and clarity in this matter. The charging standards of the CPS work against this aim.

We would appeal to the Department not to proceed on the basis of incomplete evidence or on the kind of emotive anecdotal material that so often passes for evidence in the judgement of those looking to completely abolish the "reasonable chastisement" defence.

2 To what extent have the changes brought about by section 58 altered the practice of those working with children and families in considering incidents involving an alleged assault by a parent upon a child?

All of those working with children are now under a heavier burden whereby they are obliged to consider some assaults which used to be classed as common assault as the more serious Actual Bodily Harm. Any use of discretion on the part of teachers, youth workers, childminders and others working with children puts them in the onerous position of having to report a possible crime whether in their judgement the measures taken and the outcome achieved were justifiable. The presence of Section 58 on the statute books means that such workers are under pressure to act in a manner which protects them from charges of unprofessionalism when they might have previously used professional judgement in the reporting of relatively minor cases.

Section 58 now lowers the threshold under which prosecutions and investigations can take place. Cases which in the past would not have been prosecuted will now be the subject of proceedings which can be highly detrimental to the child and to his parent. If the case were proved then of course the damage to the parent caused by the prosecution or investigation might be justified. However, in those cases which are eventually not proceeded with or in which the parent is acquitted, the damage done by separation of child and parent that inevitably comes in such cases may be serious and considerable. Indeed it may be more serious than the alleged effects of the assault would have been.

Social services work to a much lower threshold than Section 58 when considering Child Protection matters. For this reason their work will not have been fundamentally affected by the change in the law as far as for example section 47 (Children Act 1989) investigations are concerned. In the case of such investigations any "cause for concern" could have been the subject of such proceedings prior to 2005 and there has been no change to this position since then.

The only question here is whether others who work with children, such as youth workers and teachers are now so aware of the changes to the law that they more quickly refer cases which in the past they would have left unreported. Evidence of such a change in practice should surely be documented and not merely anecdotal. One would expect Social Services and the Police to have records of any "originating reports" from those such as teachers and youth workers working with children. These figures ought to be available both before and after 2005 for any change to be safely documented/evidenced. Given the widespread public ignorance which is associated with this law we believe that there will be inconsistent practice amongst those working with children considering incidents involving relevant alleged assaults.

In the absence of relevant statistics and other data we appeal to the Department not to depend on anecdotal "evidence" from those seeking to completely abolish the "reasonable chastisement" defence.

3 To what extent have the changes to the law deterred parents from using unacceptable levels of physical punishment in the upbringing of children?

The wording of this question shows an unbalanced approach to the consultation exercise on the part of the Department. We hold this to be the case because there is no corresponding question which asks "To what extent have changes to the law deterred parents from using acceptable levels of physical punishment in the upbringing of children?" We feel that this is an important point particularly as notionally Parliament and the Government have up until now taken the position that reasonable and moderate corporal punishment may have a part to play in the upbringing of children. For this reason we hold that it ought not to be the Government's desire to unnecessarily deter parents from its appropriate use. If this question represents the approach of the Government then it can best be characterised as assuming that the only possible effect of Section 58 is that it has to a greater or lesser degree had a "positive" impact in terms of deterring parents from using unacceptable levels of physical punishment on their children. We hold that this is certainly not the only possibility outcome of Section 58 but that there is the possibility that it has had a deleterious effect on the way in which parents discipline their children.

Parents are not only responsible for protecting their children and not subjecting them to inhuman and degrading treatment, they are also responsible, as those having lawful care and control of a child for ensuring their good behaviour. It is one thing to protect the child from abusive treatment by adults but it is quite another to create a climate of fear which inhibits the parents from carrying out their very necessary responsibility of disciplining the child. Children's "professionals" standard solution to this is that such inhibition will not in anyway prevent good parenting from taking place. However, at this time the Government takes the position that there ought to be a proper and necessary legal defence available for parents who are charged with what would otherwise be a serious offence (namely common assault). In short the Government is very much committed to defending the right to reasonably chastise a child. The Government cannot simply rely on allowing this practice to whither on the vine. It must recognise that there are two sides to this debate and it must even handed or at least impartial when addressing so called positive parenting methods (no smacking) and those who advocate the moderate and reasonable use of corporal punishment. This question in the consultation does not display such even handedness.

We appeal to the Department not to accept merely anecdotal evidence on the part of so called "children's rights advocates" who hold that the odd story here or there of parents being deterred is proper evidence on which to base a change in the law to abolish the "reasonable chastisement" defence.

4 To what extent have the changes to the law stimulated local agencies to help parents in knowing how to establish effective boundaries for their children?

It is a given, borne out by public opinion polls and by the last Government Consultation on Physical Punishment of children issued by the Department of Health in 2000, that most agencies working with families and children are fundamentally and in principal opposed to the practice of corporal discipline. For this reason they have consistently given one-sided advice when it comes to helping parents in knowing how to establish "effective" boundaries for their children. It surely cannot have been the Government's intention to support only organisations which offer "no-smacking" advice when corporal discipline is treated as legally on a par with non-smacking. Yet the Government funds organisations such as the NSPCC and the National Family and Parenting Institute as well as the offices of the various Children and Young People's Commissioners in the UK. Each of these is a vocal advocate of no-smacking parenting and each of them is on record as campaigning for the criminalisation of corporal punishment. The question of "what are effective boundaries for children" is one which will differ from family to family. This question again seems to assume that the only way of establishing effective boundaries for children is in a non-smacking context. Cannot the Government bring itself to speak of corporal punishment in any sort of positive light? The expectation behind this question was surely not that local agencies have produced advice and materials which enable parents to establish effective boundaries by the moderate and reasonable use of corporal punishment alongside other methods such as withdrawal of privileges or reinforcing good behaviour.

We call upon the Department to fund parenting materials of "pro-smacking" organisations who have responded to this consultation.

5 In your experience have the changes to the law assisted those working with children and families to protect children and support parents?

It is evident from the wording of the changes to the law that Section 58 was in no way designed to "support" parents. At best it tolerates the practice of physical discipline but in the hands of those ill disposed towards it may be used to intimidate parents who continue to use it. Again we ask the Department to consider whether the expectation behind this question really was that it might be that some parenting groups and social service support groups etc might be warning parents against using abusive corporal punishment but supporting them with training and materials in the appropriate use of corporal punishment.

The changes to the law have meant that in the course of the work of our staff, we have had to be very careful in issuing advice on disciplinary matters to parents. Some parents whose children, in our judgement, would have benefited from a moderate and reasonable smack have had to be advised that it is possible that their child could unwittingly, with a loose word at school or at some other activity, begin a chain of events that would be disastrous for the family. Instead of establishing boundaries for behaviour such parents have been inhibited from exercising effective care and control of their child. We freely acknowledge this to be anecdotal evidence but we urge the Department to consider the possibility that this law may have an inhibiting effect on those who wish to issue such advice as we have been in the business of doing.

6 To what extent is the legal position on the physical punishment of children widely understood by those working with children and families?

In the course of my work as a teacher I have had several clients and others say that they thought smacking was not legal in this country. We believe this impression is based on misinformation put out by such organisations as the NSPCC and other groups campaigning to make corporal punishment illegal. At the very least when such organisations in their literature give the impression that restrictions on the right to smack are greater than they actually are they create the possibility for confusion in the minds of parents. What ought to be clear is that it has not been the intention of Parliament, as expressed in any vote over the past 20 years, to abolish the defence of "reasonable chastisement".

With regard to Section 58, the misinformation promoted by anti-smacking campaigners and the silence of Government has led to confusion and ignorance of this important change in the law. The silence of the Government on this matter is most clearly seen in the fact that the DSCF has produced no notes of guidance for parents, who along with children, are those directly affected by the law. This is wholly inexcusable and unacceptable. Can we imagine a change to the national speed limit without there being a widespread publicity campaign and guidance issued in many forms? In the UK smoking in public places has recently been outlawed. But before the coming into effect of the law there was an information and publicity campaign lasting several months which left smokers and proprietors of public organisations in no doubt as to the change in the law. As the penalties for assault occasioning Actual Bodily Harm are so significant (leading to a maximum sentence of 5 years imprisonment) there ought to have been a significant campaign leaving parents in no doubt as to what changes had been effected. The police and prosecuting authorities ought also to have been issued with such guidance. In the absence of such measures can it be surprising that there is little understanding of the legal position on the physical punishment of children on the part of families.

7 If your answer to question 6 above was that the legal position was not widely understood, please tell us what would be your preferred way of improving this situation?

We would like to see the Government issuing guidance to parents which informed them that corporal punishment was a defensible and useful practice when used in a range of appropriate circumstances. We would like to see the kind of clarity provided in the Arkansas law on the physical punishment of children. This makes clear the kind of treatment that will be treated as abusive and puts it in statute. At present the position in the UK is that the CPS is at liberty to issue such guidance in its charging standards. Just as the department of health issues non binding guidance on diet for children and exercise regimes or promotes campaigns for fruit and vegetables so if it funds or promotes any organisation with an anti smacking agenda it ought also to issue guidance on what it sees as minimum standards for the safe corporal punishment of children For example, avoiding the use of closed fists, dangerous implements, avoiding smacks to the head, back or other areas which could forseeably lead to serious or permanent injury. If the Department is not prepared to issue this advice itself it ought to commission reputable organisations to do so (as it does in the case of anti smacking campaigners such as the Children's Commissioners and the NFPI).

8 Have the changes to the law had a differential effect on different groups of children and parents, including on the grounds of gender, race and disability, and if so, to what extent?

No comment

9 What are the key pieces of evidence that should be considered as part of this Review?

Firstly of prime importance are the statistics, if any, generated by police and prosecuting authorities. We would expect that there would be figures pre and post 15 January 2005 telling us of the numbers of times which the defence of reasonable chastisement was raised and how often it resulted in acquittals or guilty verdicts. Additionally we would expect any change in the law to be based upon figures which detail the number of prosecutions for ABH against children before January 2005 and the number of prosecutions brought for common assault. These figures would, of course, be filtered to include only those concerning adults with lawful care and control of the child. A detailed comparison might give some indication as to whether cases which formerly might have been charged as common assault were now being prosecuted as assault occasioning actual bodily harm. This might give an indication of overcharging on the part of the prosecuting authorities in order to deprive the defendant of the possibility of using the reasonable chastisement defence or it might be that there is a real increase in cases of ABH.

Anecdotal evidence ought not to be the basis for changing the law. It can only at best be illustrative of the findings of thorough research or the basis for further investigation.

We would strongly suggest that not enough time has passed for proper comparisons to be drawn and for tends to be spotted. In the absence of appropriate data any changes would be based on hearsay, anecdote and ideology. These are not adequate bases for the introduction of law which commands the respect and acceptance of citizens.