Child Punishment Violence
European human rights law
A v UK (1999) 27 EHRR 611 & Children Act 2004, s.58
Background
Classically, English law has held that moderate and reasonable parental chastisement does not incur the sanctions of the criminal law. However, the prevailing climate of public and legal opinion has been steadily changing since Victorian times. This process has been spearheaded by the work of the United Nations culminating in its adoption in 1989 of the Convention on the Rights of the Child. These obligations remain a matter of international law and the Convention does not have direct effect in UK legislation. However, the European Convention on Human Rights and Fundamental Freedoms has been effectively incorporated into UK law by the passage of the Human Rights Act 1998 which imposes an obligation upon domestic courts to ensure that their judgments and the application of UK law is consistent with the Convention. Article 19 of the UN Convention requires the protection of children from physical violence and maltreatment and, at Article 37(a), that:
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
This form of words is reproduced in Article 3 of the European Convention.
A v The United Kingdom
Article 3 of the European Convention was invoked in this case by a nine year-old boy in order to challenge the right of his step-father physically to punish him. Medical evidence was consistent with the repeated and forcible application of blows with a garden cane. The stepfather was prosecuted for assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act 1861. The defence accepted that the child had been caned on a number of occasions but argued that he was a difficult child and that such punishment amounted to reasonable parental chastisement. In summing-up, the judge was forced to direct the jury that if the alleged assault was the correction of a child by its parent and provided that the correction was proportionate in terms of the manner in which it was applied and the instrument used, this amounted to a valid defence to assault. The jury acquitted. The child and his natural father brought a complaint before the European Commission of Human Rights arguing, inter alia, that the treatment was degrading within the meaning of Article 3. The Commission held in favour of the complainant ruling that in order for treatment to be held to be in breach of the Article, regard must be had to the duration of the treatment, its physical and mental effects and the sex, age and state of health of the victim. The Commission was influenced by the fact that it was admitted that the beatings had been repeated and took account of the fact that the domestic prosecuting authorities regarded the incidents as sufficiently grave to warrant the commencement of criminal proceedings. It should be noted that this did not therefore amount to a blanket ruling that all physical chastisement of children was thus unlawful. A distinction was drawn with the case of Campbell & Cosans v United Kingdom which concerned the use of the belt in Scottish public schools which was not considered to inflict sufficient suffering or degradation as to amount to a violation. Somewhat perversely, it was accepted that this was so traditional a punishment in such schools at the time that the amount of humiliation and degradation was insufficient to constitute a breach of the Article. Similarly, in Costello-Roberts v UK three smacks upon a seven year-old with a soft-soled shoe in an English private school was not considered sufficiently severe.
The Commission was urged to accept that the UK restriction of parental chastisement to that which was reasonable and moderate prevented such treatment amounting to inhuman and degrading and that therefore if the domestic law test was satisfied, the provisions of the Convention were ousted. This argument did not find favour. The Commission concluded (at para. 50) that:
The protection affordedby the [English] law to children within the home is significantly reduced by the defence open to parents and those in loco parentis that the acts in question were lawful, as involving the reasonable and moderate physical punishment of the child.
The English law which had failed to find the stepfather guilty was therefore impeached as failing to protect A's interests. The Commission sought a definitive ruling from the European Court of Human Rights and was upheld. The Court found that English law did not provide adequate protection to A to prevent treatment contrary to Article 3 and that such failure therefore constituted a violation of the Article.
Section 58
Section 58 of the Children Act 2004 represents the Government's response to the ruling in A v UK and purports to be a comprehensive reform of the law relating to reasonable punishment. At first sight it does appear far-reaching. Section 58(1) provides:
In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.
However, subsection (2) specifies the offences to which this defence is no longer available as:
Wounding and causing grievous bodily harm contrary to ss.20 and 18 of the Offences Against the Person Act 1861;
Assault occasioning Actual Bodily Harm contrary to s.47 of that Act;
Offences of cruelty to a person under the age of 16 years contrary to the Children and Young Persons Act 1933.
There is a corresponding removal of reasonable punishment as a defence in civil proceedings but this is restricted to batter of a child occasioning actual bodily harm (ss.3) and ss.4 confirms that for these purposes assault occasioning actual bodily harm has the same meaning as in s.47 of the 1961 Act.
Thus the new law distinguishes between the degrees of harm which may still be inflicted and, controversially, leave reasonable punishment open as a defence in criminal cases of common law assault and civil cases which do not amount to actual bodily harm. Thus provided that there is no wounding, grievous bodily harm or actual bodily harm, the parents' so-called right to smack remains intact. In this regard it is significant to note that the evidence of the consultant paediatrician in A v UK recorded a number of bruises of varying degrees of age which therefore betokened beatings which took place on a number of occasions and were thus repeated and of sufficient severity to have caused bruising.
Criticism
This approach has been roundly and widely condemned on the basis that, by allowing such a defence in the case of children, it denies one of the most vulnerable groups in society the same degree of protection as is afforded (by the offence of common assault) to their adult counterparts. In a joint statement from the Association of Directors of Social Services, the NSPCC and other professional bodies, the retention of the defence is respect of common assault (then Clause 56 in the Children Bill) was condemned as sending the wrong message. Starting from the premise that any form of hitting of children was to be regarded as unacceptable, the signatories feared that the retention of the right to smack would urge a misguided approach upon parents and those working with children. Worse still, the emphasis upon avoiding types of punishment such as those employed in A v UK which resulted in physical bruising might give rise to a temptation to employ forms of violence which would not leave such marks and not therefore be susceptible to actual bodily harm prosecutions such as blows to the head or physical shaking. These are potentially dangerous physical actions which apparently do not fall foul of the new law.
An attempt to redress the apparent shortfall in the Act's protection of children is found in new charging standards which urge that types of injury hitherto considered too minor to be the subject of an ABH prosecution should now be regarded as warranting such a course in the case of children. These include grazes, swelling and reddening of the skin which stays for hours or days. This undoubtedly introduces confusion. Whereas such injuries inflicted between adults would not be regarded as warranting police or prosecution resources on the basis that they are de minimis, the prosecuting authorities will now have to consider action where the victim is a child. This potentially gives rise to a significant increase in prosecutions which will prove controversial while at the same time failing to supply any clear cut guidance to parents and others in loco parentis and risks perpetuating the message that the physical assault of children remains acceptable and legally defensible provided that the physical consequences of so doing do not exceed a certain threshold. It is also highly undesirable to place the burden upon the medical profession to determine what detectable injuries should be regarded as sufficiently serious to merit report and potential prosecution.
The new provisions were controversial even during the passage of the Bill with some 47 Labour MP's defying a three-line whip in support of a cross-party amendment (defeated on 2 November 2004)which favoured outright abolition of physical punishment. Opening the debate, David Hinchliffe, MP said:
Equal protection means what it says; hitting a child will be unlawful to exactly the same extent as hitting an adult. Some adults and, sadly, even some Government Ministers are fond of using the term smacking to make them feel more comfortable with what they are condoning or defending. Children, however, tell it as it is; smacking is hitting and smacking hurts. It does not just cause physical pain but it hurts inside too.
The Report on the Children Bill by the Parliamentary Joint Committee on Human Rights published on 21 September 2004 similarly urged that in order to satisfy UN and European obligations in respect of the rights of the child, the nineteenth-century defence of reasonable chastisement should be abolished altogether and not even retained in respect of common assault:
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 introduce a legislative prohibition of such punishment at the same time as measures for educating the public about the negative consequences of corporal punishment.
This is supported by the European Legislature. On 24 June 2004 (Recommendation 1666/2004) the Parliamentary Assembly of the Council for Europe called for a coordinated and concerted campaign in all member states for the total abolition of corporal punishment of children. Among the Accession Countries, Romania and the Ukraine have both recently passed laws outlawing all forms of corporal punishment bringing to 12 the number of states which have outlawed all such punishment even within the context of the family.
An Adequate Response?
Thus section 58 has been widely castigated as being an inadequate measure to ensure the protection of children but might it nonetheless be an adequate response to the ruling of the European Court in A v UK? The Government is plainly of the view that it is and it is possible to entertain some sympathy for such a view. The essence of the problem is inevitably to be found in the difficulty inherent in translating concepts of human rights into workable and enforceable legislation and, in particular, into a viable criminal code. The protection intended to be afforded to children by the United Nations and the European Community is couched in the highly subjective terms cruel, inhuman and degrading. One has only to witness the appalling debate that has raged in respect of attempts to outlaw hunting with hounds to realise how perceptions of a concept such as cruelty will vary between otherwise rational parties convinced of the legitimacy of their views. The subject of harm to children must be more emotive still.
This spectrum of subjectivity is apparent even in a consideration of the decisions of the European Court itself. The conduct in A v UK was held to be beyond the pale and there can be few right-thinking members of a civilised society that would condone the regular beating of a nine year-old with a garden cane. However, such attitudes are fluid and highly dependent upon the contemporary mores of a given society. It is significant that in both Campbell & Cosans and Castello-Roberts (supra), less severe forms of beating in institutionalised settings in which such punishment was regarded as a settled routine and an anticipated consequence of transgression were not considered to infringe Article 3. (However, it is open to question whether such cases would today be decided in the same way - which uncertainty underlines the shifting nature of values in a constantly evolving society.)
From a purely legal perspective it is strongly arguable that the provision of the 2004 Children Act is an adequate response especially when one reads the decision in conjunction with the other two authorities cited. The clear intent of the legislation is to stop short of a ban upon what is euphemistically described as smacking while removing the classic defence of reasonable chastisement and thus effectively criminalising more severe forms of punishment. However, the current reliance upon an injury-based test of severity, while probably meeting the letter of A v UK does not in all probability satisfy the spirit of the decision and almost certainly contravenes the intended principles of the UN and European Conventions. How can it be argued that a blow which inflicts a bruise or a cut is inhuman or degrading whereas a not dissimilar blow - perhaps delivered in anger and accompanied by verbal abuse but not resulting in such obvious injury is not?
As ever, however, hard cases make bad law. While it is tempting to adopt the absolute fundamentalist approach of the anti-smacking lobby, it becomes uncomfortable to have to assert that a kind and loving parent acting in full control and confronted with no alternative perhaps in a case where a very young child would otherwise be in peril of serious injury should nonetheless be prohibited from delivering a light and (physically at least) innocuous blow where this is the only way oif making a point or reinforcing an essential instruction? If there is ever to be clarity on this issue, there would first have to be consensus as to the meaning of cruel, inhuman and degrading. If any blow of any description to a minor is to be held to be unacceptable by reference to these criteria, the legislative response in the Children Act 2004 to the Conventions must be regarded as inadequate. Supporters of such a view would doubtless point to the possibility of mental trauma or even long-term psychological damage caused by the use of physical force upon children even where this stops short of significant physical injury. However, it is unlikely that there would be general agreement that ever single application of force even that amounting only to a technical common assault should be thus categorised. Therefore, while the definitions remain subject to debate, the attempt to translate them into statute will remain practically impossible. Section 58 can be justified by reference to the individual facts of A v UK but will it remain workable in the light of the next decision in so contentious an area?
Bibliography
Smith, R., To Smack or not to Smack, [1999] 1 Web JCLI
R v Hopley (1860) 2 F & F 202
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