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New Clause 12 — Reasonable punishment

Orders of the Day — Children Bill [Lords] – in the House of Commons at 4:15 pm on 2nd November 2004.

Alert me about debates like this

'(1) Battery of a child cannot be justified in any proceedings on the grounds that it constituted reasonable 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), "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) At the end of subsection (7) insert "subject to subsection (8)".

(6) After subsection (7) insert—

"(8) Corporal punishment administered to a child cannot be justified in any proceedings on the grounds that it was administered in pursuance of a right exercisable by virtue of subsection (7).

(9) For the purpose of subsection (8), administering corporal punishment to a child means doing anything for the purpose of punishing that child which would constitute unlawful battery.".'.—[Mr. Hinchliffe.]

Brought up, and read the First time.

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

I beg to move, That the clause be read a Second time.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following amendments: No. 23, in page 37, line 18, leave out clause 56.

No. 39, in page 37, line 33, at end insert—

'(6) Two years after the commencement of this section, the Secretary of State shall undertake a review of the effect of the provisions of subsections (1) to (5) on the number of convictions for the offences specified in subsection (2).

(7) As soon as practicable after the completion of the review under subsection (6) the Secretary of State shall lay before each House of Parliament a report on the outcome of the review.'.

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

I want to begin by repeating the warm welcome that I gave on Second Reading for the broad thrust of the Bill. In general, it is a very positive measure. With some minor amendments, it could represent a genuinely historic step forward in children's welfare.

New clause 12 deals with the physical chastisement of children. I accept that this is a highly contentious matter for some, and that it generates strong feelings among a significant number of people. I also accept that it is not any easy matter for any Government to address, as some people will accuse them of establishing a so-called nanny state and of interfering in the private domain of the family. I am therefore very grateful to the ministerial team responsible for the Bill for their willingness to listen, over a long period of time, to the concerns and arguments of those of us who believe that children should have equal protection in law from assault.

I am grateful to my right hon. Friends the Minister for Children and the Secretary of State for Education and Skills for the time that they have devoted to this issue. I am also grateful to those who are—shall we say—at even higher levels of the Government for a dialogue that has ensured that serious thought has been given to how we can make progress in respect of protecting children.

I shall not dwell on the outcome of our dialogue, save to say that it is unfortunate that Labour members have been whipped to vote against a new clause that has the overwhelming support of every child protection agency in the country. For some, this is an abstract academic issue, but for many hon. Members, and myself, it is about the basic human rights of a significant proportion of our population. Our arguments are based not on policy briefings from worthy organisations but on the experience that some of us have gained from working in child protection with vulnerable and abused youngsters. Our strength of feeling comes from the certain knowledge that our laws and society could do a great deal more to ensure their well-being.

Photo of Jonathan R Shaw Jonathan R Shaw Labour, Chatham and Aylesford 4:30 pm, 2nd November 2004

My hon. Friend told the House that a range of child protection agencies supported his amendment. Is he aware that Lord Laming, the author of the Victoria Climbié report that led to the introduction of the Bill, does not support his amendment and, indeed, supports the Government's position?

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

Lord Laming appeared before the Health Committee, and we discussed the matter. I do not know why he does not support the amendment, bearing in mind the fact that the escalation of injuries to this girl stemmed from what might be termed "gentle smacking". His personal perspective differs significantly from that of his predecessor, Sir William Utting, who was a strong supporter of the arguments that I shall make.

I am the first to agree that the vast majority of children, even most of those whose parents use physical chastisement, are probably better treated now than at any other time in history. For a minority whom the current law does not protect properly, however, the reality is very different. It is a scandal and a disgrace that in 21st century Britain, at least one child every week—more than 80 children every year—dies at the hands of their parents or carers. Compared with many similar countries, our record on child deaths is appalling.

Like my colleagues who have worked in child protection, I do not just think that there is a connection between our shocking levels of child deaths and laws permitting so-called reasonable chastisement; I know that there is. I have witnessed in individual cases the progression from what is now called "gentle smacking" to serious injury and, in a couple of instances, death from shaking, hitting, punching and beating. I have direct experience of the inability of a child protection agency to stop a child suffering serious beating because of a court's acceptance of the reasonable chastisement defence.

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

Will the hon. Gentleman confirm that those serious injuries and deaths are already illegal, and that the problem is the behaviour of parents who commit illegal acts, not the behaviour of the vast majority of parents who are trying to keep their children within reasonable bounds of discipline?

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

If the hon. Gentleman will allow me to expand my argument, I will address that point.

New clause 12 seeks to right a long-standing wrong for children. It has the modest aim of giving children equal protection from assault, but has substantial potential to reduce all forms of violence. 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 hurts inside too.

The new clause would criminalise hitting to exactly the same extent as hitting adults. That is equality, and children, who are far more fragile and vulnerable than us, deserve nothing less. Some members of the Government have said that they do not want parents to be criminalised for hitting their children. If they mean that they will not apply the criminal law on assault equally to assault by parents on children, we are on opposite sides of the fence. If they mean that they do not want parents to be drawn into the criminal justice system, charged and prosecuted for minor assaults on children, we are on the same side. No one in their right mind would think it constructive, apart from in very exceptional circumstances, to pursue parents into court for trivial assaults. Prosecution of parents is seldom in the interests of their dependent children, but that cannot be used as an excuse for leaving the law unclear, and sending the message that hitting children, unlike hitting adults, is acceptable.

p

1 The law makes a substancive difference between children & adults.
2.The parents (or carer) is legally responsible for the actions of a minor. How can a minor have rights ?
3. Smacking is NOT the same as hitting - that is why we use different words.
4. Why complicate the law any more ? It is illegal to cause physical injury; that is what most people understand by reasonable chastisement.
5. The only kids I've met who weren't smacked; are without exception; obnoxious; ill manned; ill tempered yobs. Yes this also describes SOME of those kids who have been smacked; but not ALL. If you have managed to bring up your kids without smacking AND EVERONE else says they are well behaved and polite then you have my sincere admiration

Submitted by pete marrable

Photo of Mr Simon Thomas Mr Simon Thomas Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport)

The hon. Gentleman will know that since the law was changed in Germany in 2000, not one parent has been criminalised. Does he agree that the issue at the heart of the Bill is summed up in the film of Roald Dahl's "Matilda", in which Danny DeVito says to his daughter, "I'm big and you're small. I'm right and you're wrong"? It is not only about quality, but about defending the most vulnerable in society. It is plainly wrong that a 13-stone, 40-year-old man can hit a four-stone seven-year-old child. We just have to change the law.

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

I did not see the film, but I agree with its message. The only way to clarify the law and send a clear message that hitting children is at least as wrong and unlawful as hitting anyone else is to give children equal protection by removing the existing defence of reasonable chastisement altogether.

Photo of Mr Peter Bradley Mr Peter Bradley PPS (Rt Hon Alun Michael, Minister of State), Department for Environment, Food and Rural Affairs

Through an honest sleight of hand, my hon. Friend has elided smacking and hitting. Most responsible parents are well able to distinguish between smacking that does not cause lasting harm and hitting, which certainly would. When he listed the ways in which those 80 children met their tragic deaths, he identified shaking and other forms of assault, but did not refer to smacking. It is clear to most reasonable people that assault is a different kettle of fish from disciplining a child in a loving family environment.

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

My hon. Friend gets us into the heart of the debate. I have been in court when the same point has been raised in individual cases. Is a smack in the mouth a hit? What is the difference between a smack and a hit? What is a gentle smack and what is a more serious, heavier smack? There are different smacks from different people. I weigh 16 stone. If I smacked my hon. Friend, it would be different from someone who was 10 stone smacking him. We need to consider how difficult it is for the courts to come to terms with the doubts that he raises.

To pursue the point further, I have argued that we need to get rid of the reasonable chastisement defence. Those who cannot accept what I believe to be a common-sense approach have been scaremongering that it is unworkable or that the child protection police and prosecution services will pursue prosecutions for so-called gentle smacks.

The evidence of the Director of Public Prosecutions has been grossly misrepresented. In his evidence to the Joint Committee on Human Rights, he said, reasonably enough, that he could not guarantee that parents would never be prosecuted for minor assaults on their children. He stated:

"The reality is that we would have to have some sort of policy about this but I think it would be inconceivable for us to draft a policy that would be so wide as to say that minor assaults on children would never be prosecuted because there clearly could be circumstances where they would be. One might posit an example of a child who was mentally handicapped or a child who was subjected to sexual abuse or other forms of assault. So we would not and could not draft guidance which would absolve all minor acts of battery against children from criminal prosecution. That said, 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, although it is not an entirely accurate analogy because children are much more vulnerable than adults."

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

The view of the CPS appears to be contradicted by what the DPP told the Joint Committee and also what the Association of Chief Police Officers said to me last week.

The DPP did not say that equal protection was unworkable. He said that Parliament should decide. Two tests have to be satisfied before any prosecution goes ahead: the evidential test and the public interest test. The public interest test invariably includes consideration of the best interests of the affected child. It is hard to understand how charging and prosecuting a parent for a minor assault that causes no injury is going to pass the tests and go ahead except in extreme circumstances. That does not render the law meaningless. On the contrary, it shows it to be sensitive.

p

So if the public interest test would normally fail; why legislate ?

Submitted by pete marrable

Photo of Barry Sheerman Barry Sheerman Chair, Education & Skills Committee

My hon. Friend's arguments are very persuasive; we pursued many of them in both my Select Committee and his. However, the proposals would bring a big change in our law. Does not he think that trying the new system for two years, monitoring it and then making a judgment would give us a means of transition for people we represent who are unpersuaded? Would not that be a more positive way forward?

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

If by "the new system" my hon. Friend means the one included in the Bill by the House of Lords, I shall be going through exactly what all the agencies concerned with child protection are saying about clause 56.

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

No, I am sorry, but I have to make some progress. Other Members want to speak in this brief debate.

All the associations representing those who will need to work on equal protection are agreed that it is workable and safe; all of them. I have met and talked with representatives of the Association of Directors of Social Services, the Association of Chief Police Officers, social workers, the NSPCC, health visitors and paediatricians. They all believe emphatically—to respond to my hon. Friend Mr. Sheerman—that clause 56 is unworkable and unsafe.

The position of the police is especially worthy of note. The House will recall that in the Lords debate on equal protection Lord Condon—who, as Paul Condon, was a distinguished Metropolitan Police Commissioner—said that he was absolutely certain that the status quo should not prevail and that parliamentarians

"have an historic opportunity to establish a pragmatic, symbolic and new legal approach to protecting children".

He said that peers

"should not be deterred by a fear of unleashing hundreds of thousands of police inquiries into trivial allegations and pitting child against parent in frivolous circumstances".—[Hansard, House of Lords, 5 July 2004; Vol. 663, c. 549.]

Only last week, I met Chief Constable Terence Grange, who speaks for ACPO on child protection matters. Subsequently, he wrote to me, setting out the association's views on the serious problems that would arise for the police should clause 56 become law. I have a copy of his letter if anybody wants to look at it. He stated:

"The proposed Clause would introduce randomness in terms of the child's physiology and the background of the parent, working class families tend to have much rougher hands than lawyers, bankers, etc. Some children redden or bruise much more easily than others. Such randomness and the use of age to differentiate between common assault and actual bodily harm is, in my view, likely to lead to much more complexity."

In addressing specifically the removal of the reasonable chastisement defence, Chief Constable Grange stated that

"since 2002, the police service in England and Wales has adopted an approach of recording crime whereby if a child or a witness or a member of the public had called to allege that a parent had smacked a child, that matter would be recorded as a crime. That does not mean that prosecution would follow, there is a well established procedure under 'Working Together' that enables the police and social services to decide on the best course of action and that would be followed. Therefore, if Parliament removes the defence I would anticipate no lasting issues which would make the situation unmanageable for the Police. The matter would be recorded as a crime and investigated by police or social services, dependent on the evidence, injury and a view on what is best for the family, as happens now . . . There may be an increase in allegations, however, given the increase in police resources over the last four years I am confident that we could cope with that. It is my view that were the change to be made over a reasonable period of time the number of allegations would fall, as given a good education programme by Government, rather like drink driving, smacking a child would become socially unacceptable".

Chief Constable Grange concludes his letter on behalf of ACPO by saying that

"removing the defence of reasonable chastisement would not create an unmanageable situation for the police force. The proposed clause 56 would introduce far more complexity than it would solve, as one example, the police would be seeking statements from Doctors and Paediatricians at such a level that I think they would find that unmanageable. We take no view on whether or not the defence should be removed. If Parliament removes the defence the police service in England and Wales will be able to manage the consequences".

As Chief Constable Grange indicates, the police must work closely with members of the medical profession on such matters. It is important to note that the Royal College of Paediatrics and Child Health, which represents paediatricians involved in child protection, is a signatory to a multi-agency statement that claims that clause 56 is unsafe and unworkable and that supports equal protection. Other signatories to the statement include the Community Practitioners and Health Visitors Association, the NSPCC, the British Association of Social Workers and the Association of Directors of Social Services.

Mr. Steve Love of the children and families committee of the ADSS wrote to me on behalf of the association to state its clear views. He said:

"We would welcome the greater clarity that will result that children be given the same protection as adults. I believe this would assist frontline practitioners in reinforcing the message that physical punishment is not an appropriate method of providing care and control for children."

He continued:

"I think the proposed introduction of Cl. 56 would create an additional complication to what are already complex matters. The current threshold of 'significant harm' for formal child protection investigations would now have another standard if Cl. 56 was introduced. It's difficult to see how the standard could be applied consistently, as what may bruise one child may not bruise another. Social Services Departments are working hard to ensure a careful, measured and consistent approach for those involved in protecting children. I do not believe the introduction of Cl. 56 will do anything to assist".

In the light of such clear statements from all those in the front line of child protection, the scaremongering about the reform is frankly unacceptable. If there are still people in 2004 who want to defend hitting children, they should do so honestly, rather than hiding behind the misrepresented effects of reform that have been peddled over the past few weeks.

Photo of Julie Kirkbride Julie Kirkbride Conservative, Bromsgrove 4:45 pm, 2nd November 2004

Part of the hon. Gentleman's argument is the idea that children should be equally protected from being hit or smacked, whichever word one chooses to use. However, there is a difference between a child and a parent. A parent has a duty of care to a child and carries that out by putting it to bed, giving it food, looking after it and giving it moral guidance and help with discipline so that it may become a proper civilised adult. Smacking might be appropriate in that context. Why does he want to influence the relationship between a responsible parent and a child who may well need proper guidance?

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

We could argue on that basis that perhaps people with learning difficulties lack a sense of reason. Should we thus suggest smacking them, because that is exactly the same argument?

p

No it is not; & every reasonable person is well aware of this difference .

Submitted by pete marrable

Photo of Mr Kerry Pollard Mr Kerry Pollard Labour, St Albans

May I offer my hon. Friend some support? As a father of seven children, I believe that I have more parenting skills than most in the House, and I say, "Don't smack children."

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

I am grateful to my hon. Friend.

I want to conclude in a moment so that other hon. Members have the opportunity to speak. People who oppose new clause 12 because of the risk that a parent might, in exceptional circumstances, be prosecuted for what is perceived as a minor assault should not fool themselves that they have the backing of those charged with a responsibility for child protection; clearly, they do not. The Joint Committee on Human Rights has heard evidence on the matter from the Director of Public Prosecutions and others. In its 19th report in September, it emphasised the fact that equal protection would provide more legal certainty than clause 56. No one has challenged the law of assault against adults as not providing legal certainty. No one would suggest that we should decriminalise the minor slapping of women, confused elderly people or those with learning difficulties, who, like young children, might have limited powers of reasoning. I am merely proposing to extend the existing law to cover children equally. We have already extended equal protection to children in schools, nurseries and so on. This is the last logical step in establishing equality.

Colleagues who have looked at debates on the Bill in the House of Lords will have seen that some particularly absurd examples were cited. One Member asked whether we really wanted to criminalise the exasperated parent who smacks her child to stop him running into the road for the fourth time. Well, do we really want to decriminalise the exasperated but loving daughter who smacks her confused father who is suffering from dementia and who is also straying into the road for the fourth time? Again, we must not confuse the law, which must be clear and take sensible common-sense approaches to prosecution. All assault and battery should be unlawful. In either of the examples, can anyone seriously envisage the perpetrators being dragged off to court?

If there are not to be wholesale prosecutions, some will ask what is the point of changing the law if we are not going to enforce it. Let us be clear that removal of the defence will make prosecution easier in cases where it is necessary to protect children from significant harm and doing so is in the child's best interests. At the moment, the law inhibits the child protection system at every stage. Most importantly, it inhibits those working with families in intervening early with clear and supportive messages, rather than waiting for significant injury.

The concept of prosecution and punishment is just one purpose of the law. Prosecution in this area is a demonstration of the law and the system failing to protect the child. The higher purpose of the law and its particular purpose when dealing with the private sphere of the family is to set a standard, send a clear signal, educate, change the culture, change individual attitudes and satisfy human rights.

Through its policies on the physical punishment of children, Britain is in breach of its obligations under both the United Nations convention on the rights of the child—signed up to by a Conservative Government some years ago—and the United Nations convention on human rights. Twelve countries have already introduced equal protection. If they can do it, so can we. The new clause has the support outside Parliament of the largest and broadest alliance ever assembled to pursue an issue on behalf of children. We should listen to its argument, and in particular to the unanimous voice of our child protection agencies, and vote to ensure that the welfare of our children is properly safeguarded in law.

p

The only people you haven't bothered asking or listening to are :
Parents .
Try asking us; not all of us can offload our ill disciplined brats onto nannies; au pairs, or boarding schools .

Submitted by pete marrable

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Spokesperson (Home Affairs)

We have just heard a comprehensive run-through of most of the main arguments, and as time is limited and many hon. Members want to speak, I shall not repeat them. I want to reflect on the fact that the defence of reasonable chastisement has been challenged in the European Court of Human Rights and a judgment has been made. The Joint Committee on Human Rights in this place believes that something must change as a result of that judgment.

In accepting that something must change, let us consider the amendment agreed in the House of Lords, which now forms clause 56. I regard it effectively as a sticking plaster. I am sure that legalistically it addresses the fundamental issue that we are in breach of various conventions, but as the Joint Committee on Human Rights says, it is likely that there will be further incompatibilities in future. So, if anything, clause 56 would be only a temporary fix and does not tackle the main issue. If we think about it, putting a sticking plaster on something makes one feel better and more comfortable. I worry that clause 56 makes people feel a little better because they think that they are tackling the worst of abuses and that therefore things will be all right. That concerns me greatly. For that reason, I support new clause 12, but I do not do so lightly. It has taken me quite a long time to come round to that and to have the courage to speak up on it.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

What would happen where a parent had smacked a child in the privacy of the home, just the two of them? How would the child have protection? Is the idea that the child would know about this law, go to the police, and then the police would have to adjudicate between parent and child, one saying yes and the other no? How far will the intrusion go and could it be successful for the child?

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Spokesperson (Home Affairs)

I shall continue with my points and address that question at an appropriate point rather than diverting from my main issue at this stage.

I was saying that I do not support the new clause lightly. I have given it a great deal of thought and I am aware that many people will disagree with this approach, but it is an opportunity to show leadership. So much of the legislation in which I have been involved has been reactive. We constantly try to do something in our criminal justice system about bad behaviour, violence and physical assault, but this is an opportunity to start at the root causes.

What does physical punishment achieve? Research shows that it does not change behaviour but suppresses it, and suppressing behaviour almost certainly means that it comes out in another form, particularly when the person who administers or might administer the punishment is not around. That creates the potential for children to hit out at one another in the playground. After all, what have they seen in the home? What are their role models? Any form of physical punishment sets that lead.

Until I became a Member of Parliament, I had not realised that some children, particularly in certain home settings, see types of behaviour that I could not even comprehend—I am referring to cases of sexual abuse—yet they become a norm. We are talking about norm referencing here. Any form of violence within the home has a spin-off effect outside the home and in future family relationships.

p

Why do we always use the minority case as reason for interfering unnecessary legislation ?
Current law deals with child abuse when it's found. The problem is not with the majority of parents but with amazing levels of incompetence from social services etc

Submitted by pete marrable

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Spokesperson (Home Affairs)

I shall continue my argument, if hon. Members do not mind. I am sure that they will have plenty of opportunity to speak later.

Physical punishment is ineffective and has other consequences. There is also the important point about equality for children and adults, which I see in terms of the respect that we have for one another as individuals, and that respect is broken down.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Spokesperson (Home Affairs)

I shall continue the points that I am making.

If we stop and think carefully, we are not making a positive contribution. It is often said, "It never did me any harm," but the research shows overwhelmingly that physical punishment certainly does no one any good. We have a positive opportunity to show real leadership and set a change in culture for the 2lst century. People will not change their behaviour overnight. It will be gradual and any move along these lines needs an enormous amount of support and parental education.

Let us consider a familiar scenario. In a busy shopping centre one inevitably comes across a parent who is having an extremely frustrating time with a youngster. They are pushed to the limit of their endurance and perhaps hit their child round the head or hit hard, and I flinch when I see that. I imagine that that applies to most people. I understand the situation because, as a parent, I have been pushed to the limit of endurance, too. We can all acknowledge that. We are not considering criminalising normal behaviour.

Other countries take a sensible approach. It is accepted that it takes time to moderate behaviour and that one cannot simply go from one control system to another without supporting education. However, we could be proud of our leadership if we accepted the new clause. I do not view it as an example of being a nanny state because we would set the foundations for improving behaviour in society and for some of the values that we all support. We see violence on the streets, and perhaps we have set the bad example.

In answer to the point that Mr. Redwood made, senseless criminalisation has not occurred in other countries. It is worth attending briefings by representatives of Germany and Sweden. Europe has a long history of making improvements in this respect. Deaths from abuse have more or less disappeared in Sweden, where the problem is managed so much better. I ask all hon. Members to examine their consciences and consider supporting new clause 12.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby 5:00 pm, 2nd November 2004

I want to speak about amendment No. 39, which I framed after discussions with my hon. Friend Mr. Woodward, who, as a trustee of ChildLine, has done much to help vulnerable children. I want to put on record my thanks to him for his work on behalf of vulnerable children throughout the United Kingdom.

The law, which allows reasonable chastisement of a child, fails to protect children who are physically abused. It allows their abusers a loophole at trial and prevents other cases from coming to trial. The alterations that were made in another place present an unsatisfactory compromise, allowing children to be hit but placing a physical marker on how hard they can be hit and in what way. That is dangerous because children mark in many different ways for different lengths of time, and shaking and blows to the head often do not offer the physical proof that would have to be brought as evidence to ensure a conviction. The proposal is impractical because it will place doctors and paediatricians in a difficult position in determining what constitutes minor bruising and thus whether a child is covered by the new law. That is unsatisfactory.

However, although my hon. Friend and I believe that the current law fails to protect a child, we acknowledge the need to bring the public with us. That is why we propose, as a practical way forward, a Government review two years after the introduction of clause 56. It should be followed by a report to the House for our consideration. I stress that, if the review shows that the child abuse statistics have not dramatically improved, legislation will need to be reconsidered. That should happen only after we have had a proper time to consider the effectiveness of the proposals.

p

Sorry; it is not the law that fails to protect the child; it is the poor (or lack of) application of the llaw that is the problem. Just like the mobile phone law; there's been no change because no one can be bothered to ENFORCE the law

Submitted by pete marrable

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I want clause 56 to be removed from the Bill because, like Mr. Hinchliffe, I believe that it worsens the position. The hon. Gentleman spoke of the need for a careful, measured and consistent approach to assist those who care for children and he mentioned several agencies that supported his careful, measured and consistent approach. The group that he did not mention in that connection was those who have the greatest responsibility for bringing up children: parents. I am not fortunate enough to be a parent, but I have no doubt that the best way to bring up children is with their two natural parents. Not all of us achieve that aspiration—we do not, of course, condemn those who do not achieve it—but parents have a unique relationship with their children and a unique responsibility to bring them up as citizens of tomorrow, as my hon. Friend Miss Kirkbride suggested. We know that the overwhelming majority of parents not only do their best, but do an excellent job of bringing up children. Just as we make mistakes from time to time in our personal and political lives, so, under much greater pressure than us, do parents.

p

Horray ! Words of sense at last

Submitted by pete marrable

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Does my hon. Friend agree that if the defence of reasonable chastisement is abolished, it will criminalise millions of decent, loving parents who use a smack from time to time, whereas those few parents who assault their children horribly and are guilty of a criminal act will simply take no notice?

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

My hon. Friend is absolutely right. The police and other agencies currently face the difficulty of tracking down and securing convictions against those who horribly abuse their children.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence), Shadow Spokesperson (Foreign and Commonwealth Affairs)

Is the hon. Gentleman aware of the recent "Children are Unbeatable!" alliance poll, in which 74 per cent. of parents—the figure for parents under 24 is 76 per cent.—said that they are against beating and smacking?

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I am aware of that poll. It did not mention "beating"; it talked about "hitting". It was taken in 2004.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

Yes; the poll is up to date. The definition of "hitting" adopted in the preamble to the poll included a slap or smack, but when the actual question was asked, the poll did not use the words "slapping" or "smacking"—it used the word "hitting", in the sense of hitting not a child but family members. That is the perverted way in which the questions were asked on behalf of the "Children are Unbeatable!" alliance.

Many other surveys have been undertaken. MORI conducted a survey for the National Family and Parenting Institute, which claimed after that survey that only one in five parents think that smacking is an effective way to teach children the difference between right and wrong. However, parents were not asked whether smacking is an effective way to teach children the difference between right and wrong, but whether it is the most effective way, and one in five parents think it the most effective method.

A British Market Research Bureau survey in July 2004 found that 85 per cent. of respondents think that parents should have the right sometimes to smack their children. In a survey undertaken on behalf of the Department of Health in 1998, 88 per cent. of respondents agreed that it is sometimes necessary for parents to smack their children. Let us examine all the surveys, rather than just one.

Photo of Mr Peter Bradley Mr Peter Bradley PPS (Rt Hon Alun Michael, Minister of State), Department for Environment, Food and Rural Affairs

I thank the hon. Gentleman for giving me the opportunity to confirm the findings that he has just set out. I conducted a survey on the issue in my constituency, where 89 per cent. of respondents said that they do not want to see smacking banned. However, 71 per cent. wanted the law clarified to distinguish between smacking and hitting—the distinction is between disciplining a child in a loving relationship and assaulting and abusing a child. My constituents want to see the law make that distinction, and I am slightly disappointed that the hon. Gentleman does not.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I am grateful to the hon. Gentleman for his intervention, which brings me neatly on to what is wrong with clause 56. The amendment that Lord Lester moved in the other place throws the law on smacking into confusion. It removes the reasonable chastisement defence in three cases—wounding, grievous bodily harm and cruelty. That is entirely justifiable, but it will make no difference because a court is unlikely to accept that chastisement with such effects is reasonable. Indeed, the reasonable chastisement defence has been attempted in only 11 cases since 2001, and in only five of those was a conviction not secured. Lord Lester's amendment would retain the reasonable chastisement defence for assault and for battery, but abolish it for assault causing actual bodily harm. That is the nub of the problem, because the definition of assault causing actual bodily harm includes tenderness and bruising; and, as the hon. Member for Wakefield said, some children bruise more easily than others.

It follows that a parent who administers a quick slap in a supermarket, perhaps to foreshorten the sort of childish tantrums to which Mrs. Brooke referred, will be guilty of a criminal offence if it causes actual bodily harm such as tenderness. That is not to say that they will be prosecuted, but they will be criminalised. The hon. Member for Wakefield agrees with me about that.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The question also arises as to whether this will result in a misuse of police resources. Does my hon. Friend agree that if a member of the public saw a child being struck in a public place, and then reported that matter to the police, the police would have to make detailed inquiries to discover whether there was an underlying case of abuse in that particular case?

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I agree with my right hon. and learned Friend. The hon. Member for Wakefield says that the police are recording such reports now, so we can imagine how many more there would be if there were even more confusion about what the law means, which would be the result of Lord Lester's amendment.

Photo of Mr Simon Thomas Mr Simon Thomas Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport)

The hon. Gentleman has made the case that clause 56 is rubbish and does not hold water, so we can at least agree on that. He now wants to rely on the ancient common law defence of reasonable chastisement. Is he aware that that defence once applied to wives and servants as well? In what sense does he think that we should, in the 21st century, extend a protection that allows children to be, in his own words, bruised or harmed?

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I should have thought that there is an obvious difference between a child who is not yet, or is in the process of becoming, a moral being and a wife or a servant, who, one would hope, already is. The loving relationship that parents have with their child is part of what informs the way in which they bring them up. It may be argued—indeed, it was put to me by members of the Isle of Wight youth council, who lobbied me vigorously and eloquently last Wednesday—that no one will be charged with this offence. There are prosecuting guidelines, and the police and social services have discretion. The problem with the guidelines, however, is that the authority has discretion whether to apply the law, and different authorities, even those operating on the same guidelines, can reach different and perfectly reasonable conclusions about how to apply the law.

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

Does my hon. Friend agree that even if no one is charged, the police or some social worker—[Hon. Members: "Some social worker?"] I am glad that Labour Members find it so amusing, but aiming to criminalise millions of people is a serious matter. The police or a social worker, who know neither the parents nor the child, will come to interview them and drive a wedge between them.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I would be surprised if they did not; and better authorities than I have said that such interviews cause trauma within families.

The Attorney-General has stated that the Director of Public Prosecutions intends to revise his guidelines to make it more likely that people will be prosecuted for actual bodily harm than for assault, although that means that they will not have the defence of reasonable chastisement. He said:

"The effect of that pending change is that even minor assaults by a parent on a child, where— among other things—"minor bruising" or

"swelling . . . are caused, will normally be charged as assault occasioning actual bodily harm."—[Hansard, House of Lords, 5 July 2004; Vol. 663, c. 563.]

As if that were not bad enough, the guidelines apply only to the police and the Crown Prosecution Service, not to other prosecuting authorities or private individuals. That will lead to greater confusion among parents about how they are permitted to discipline their children. The CPS and the police might say one thing, but a private prosecution, perhaps backed by a militant anti-smacking lobby, might say something different.

I echo the view of the hon. Member for Wakefield that clause 56 is a muddle and makes the law more, rather than less, complicated. The division of opinion in the House is very clear: it is between abolishing smacking altogether and retaining the current reasonable chastisement defence.

p

Hear hear.
So why fix what is not broke. The charge of "NannyState" is proved.

Submitted by pete marrable

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Jane Kennedy, Minister of State), Department for Work and Pensions 5:15 pm, 2nd November 2004

I speak in support of amendment No. 39, tabled in my name and those of my hon. Friend Mrs. Curtis-Thomas and other hon. Members.

My journey on this issue reflects that of any other parent, I suspect, and of many members of the public. I have no great expertise in the matter, as some hon. Members do. The only expertise that I bring to the debate comes from my becoming the father of three children within three years—I have expertise in running myself ragged trying to keep up with their high levels of energy.

My journey on this issue has changed substantially. At one stage, I was completely opposed to the idea of any further controls or of a ban on smacking. Now, I feel that the mood of public opinion is moving firmly in the direction not only of greater controls but, eventually, a total ban. I also feel that that is probably the right thing to do. However, I have a degree of uncertainty about this because, as a parent, I am not yet wholly convinced, although I am nearly there.

Clause 56 is not ideal by any stretch of the imagination, but I recognise that it is a step in the right direction. It lacks simplicity and it is open to legal interpretation. It also lacks elegance, but so does much of our current law. If a ban is the right way forward— I am inclined to that way of thinking, but it is a big "if" in the public's mind at the moment—but the Government do not feel ready to introduce a ban today, let them at least commit themselves to a full, fundamental review two years after the commencement of the Bill, which has so many good things in it. Let them bring this issue back to the House so that we can debate it in full and consider the implications.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Does my hon. Friend accept that all of us who propose a complete ban—now—on the physical punishment of children would very much want it to be developed in the context of parental support, parental education and parental information? There would be no question of simply imposing something without a great deal of work being done with parents.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Jane Kennedy, Minister of State), Department for Work and Pensions

I entirely agree with my hon. Friend. His point is well made and he will see that I shall cover that issue later. He will be aware of the well-known saying in politics that we cannot lead unless, when we look over our shoulder, people are still following. One of the problems that the Government face is that there is not a great big crowd in favour of a ban. People are following that route in increasing numbers, but they are not all there yet. I include myself among those who are not yet there, because I still have some doubts.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

On that issue, may I point out to my hon. Friend that when the Swedish Government took the decision that parents should not smack their children, most people there were against it? However, a survey was carried out a couple of years ago, after the ban had been in place for quite a few years, and only 6 per cent. of people wanted the right to smack their children. So let us take this step now, educate now, and get on with the process of improving the lives of our children.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Jane Kennedy, Minister of State), Department for Work and Pensions

One Labour Member has already remarked on the fact that this is an historic occasion. I agree, but it is not the only occasion. I know that my hon. Friend holds strong fundamental and principled views on this matter, which might well be right—that is what I am saying—but this should not be the only occasion on which we can revisit the issue. That is why I strongly support the amendment under which we would review the matter in full once we have seen whether clause 56 works. If it has not worked, we will have to go forward from that point.

Such a review would not be based only on international comparators—we have those already. It is a question not of what works in Sweden or other European countries, but of what will work in this country, with our historical attitudes, our parenting culture and our legal system. I for one would urge the Government to move ahead with the Bill because it contains so many good things for children. However, they should come back to the House, not lock the door on us, and give us the opportunity to debate this issue once again. While this might be a historic moment, it is not the one and only and we deserve another opportunity to review public opinion, parental opinion and Back-Bench opinion in two years' time.

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

I wish to speak to the new clause and amendment No. 23. I hope that the House will divide on amendment No. 23 when it gets the opportunity.

I introduced a private Member's Bill four years ago, which I recall Mr. Dawson opposed. I therefore re-examined my notes. I recall that in 1993, a judge had before him a mother of two appealing against a conviction for assault. She had spanked her child with a slipper having caught the child stealing. One may or may not agree with that, but she was convicted of assault—for those who say that people do not get charged and convicted, that is one case. The judge quashed the conviction, saying:

"If a parent cannot slipper a child, the world is going potty".

I do not know whether the judge is still alive, but I suspect that he will think that many in the House are indeed going barking mad—[Interruption.] If there are Members who would like to leave the Chamber, they should do that instead of nattering.

A parent who harms a child should of course be charged and prosecuted. Many are not. Does anyone really believe that passing this law will mean that more parents who harm children will be prosecuted? I suspect that that will not be the case.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Does not the hon. Gentleman understand that the proponents of a complete ban are trying to argue for a cultural change whereby the physical punishment or over-chastisement of children simply becomes unacceptable?

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

The hon. Gentleman will know that I like and respect him, but that does not mean that I agree with him.

I am delighted that Mr. Pollard and others can bring up their children without smacking them. I think that that is marvellous. I have two small children to whom I am devoted—I love them more than anything else in the world. Very occasionally, I smack them; much more often, I threaten them with it. Funnily enough, it works rather well.

I will talk briefly about violence in society. Mrs. Brooke said that violence begets violence. Apparently, we now have 1 million violent crimes a year on our streets, children are carrying knives in schools and using them, teachers are being attacked in schools more and more often, and teachers tell me that when they try to remonstrate with children, they say, "You can't touch me." When we debated getting rid of corporal punishment in schools, we were told that it would mean less violence in schools. In fact, there is more. Members should therefore ask their constituents whether they think that the drive towards removing violence— smacking children and corporal punishment—has achieved much.

p

If you believe in empirical evidence then the case for RE-introducing corporal punishment is un-assaleable.
However those who dream up these ideas do not seem to believe in using evidence to prove a theory. It should be; therefore it is !

Submitted by pete marrable

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

In the instance that the hon. Gentleman, who is my near parliamentary neighbour, has given, is it not just as likely that increased violence between young people and by young people arises from the violence of the background that they may experience in their home, rather than from a lack of chastisement in school?

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

I do not think that the evidence bears that out. I would say that the rise in violence is much more related to the drivel coming out of our television and video screens, but that is another matter for another debate at a later time.

Who cares more? Is it parents, is it social workers, is it the police or is it legislators? As a parent, I know who cares more: I care more. I suspect that if other Members ask their constituents who are parents the same question, they will hear the same answer.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

Will the hon. Gentleman give way?

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

I will give way to the hon. Gentleman, who will never have children so he will approach the matter differently. [Interruption.]

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I would have said that I was grateful to the hon. Gentleman for giving way.

Is not the truth of the matter that some parents—the vast majority—do care deeply about their children, but some do not? That is the problem that we must address.

p

Dead Right !

Submitted by pete marrable

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

On that I entirely agree with the hon. Gentleman. He is quite right that some parents do not care. The question is whether abolishing all smacking will make them care more. I rather doubt it.

Who knows best? Is it the police, social workers or parents? Of course there are parents who harm their children, but they are, I suggest, a very small minority, and they should be prosecuted now.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

May I say to my hon. Friend—on behalf, I think, of his own party—that his remark to Chris Bryant was uncalled for and deserves an apology?

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

I will indeed apologise to the hon. Gentleman, although I do not like people preaching to others. I hope that the hon. Gentleman will forgive me, and I might even buy him a drink afterwards. Perhaps it is to do with the excitement of the occasion.

Most loving parents are trying their best in very difficult circumstances and many do raise children with no smacking at all. I remember my brother telling me that he had no problem in this regard; perhaps it is only others who do—but how dare anyone tell loving parents, "We know best"?

Photo of Paul Goodman Paul Goodman Shadow Minister (Disabled People), Economic Affairs

My hon. Friend will know from his constituency experience—as will all Members—of the belief among our constituents that public authorities and the ruling elites, who are well represented on the Labour Benches, are not on their side. Is this not the key question? If the law is changed tonight, are our constituents more or less likely to believe that the ruling elites and the public authorities are on their side?

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

That is an excellent point. We are talking about introducing the police and social services into the relationship between a child and his or her parents. At the very least, an interview with a police officer will cause some friction and tension between parents and children. At worst, it will lead—as it often has—to a child being taken into care.

There was a man called Frank Beck who ran care homes in Leicestershire. We should all know about the horror stories that emerged from those homes. Most social workers are trying their best in difficult circumstances and some are outstanding, but we know that not all of them are.

Photo of Shaun Woodward Shaun Woodward Labour, St Helens South

At the heart of these proposals is the fact that every week more than one child in this country dies as a result of parental physical abuse. We are not asking whether people in this country love their children more or less than those elsewhere in the world. The fact is that in Sweden, where smacking has been banned, no child has died as a result of parental physical abuse. What we are arguing about, surely, is how to prevent unnecessary and tragic deaths.

Photo of Andrew Robathan Andrew Robathan Shadow Minister (Defence)

I am not sure that banning smacking will lead to any more convictions of parents who abuse their children in this country. I understand that in Sweden smacking was abolished in 1979. Between 1981 and 1994 there was a fivefold increase in the number of child abuse cases and child-on-child assaults, which is interesting; but, more to the point, UNICEF states that the average number of deaths per 100,000 children over the past five years in Sweden is much greater than the United Kingdom average. We should go back to the statistics.

I want to see a society where children are well disciplined. Part of self-discipline is being taught discipline by one's parents. I hope that that does not need smacking, but sometimes it does. Those who will vote to ban smacking are showing an extraordinary arrogance in saying, "I know best. I know better than loving parents." As my hon. Friend Mr. Goodman said, that shows a detachment from people in this country. We do not know better than most parents. We should not pretend that we do. Most parents can look after their children much better without the interference of legislators, the police or social services.

p

We do not know better than most parents. We should not pretend that we do.
The nugget of gold in this debate; leaving no possible rebutal if you agree with it.

Submitted by pete marrable

Photo of Julie Morgan Julie Morgan Labour, Cardiff North 5:30 pm, 2nd November 2004

I support new clause 12. My hon. Friend Mr. Hinchliffe has gone into many of the detailed arguments for the new clause. It is important that the law sends a clear message that hitting, smacking or any form of physical punishment by an adult to a child, who is smaller, weaker and vulnerable, is not acceptable. Hitting a child is humiliating for the child and for the adult involved.

I have looked into research that has been conducted in Wales by Save the Children about how children feel about being smacked. That research clearly shows that children do not view smacks as trivial and that the effects of a smack are deeply felt. They associate smacking with angry parents. Some of the older children said that they felt that the adults felt regret after they smacked a child. Children said that smacking usually takes place in the house and in other areas where no one can see. They felt that adults were ashamed of smacking their children.

Peter Clarke, the Children's Commissioner for Wales, says that young people have complained to him that they do not have the respect of adults. That is one of his main findings in the reports that have been published and the discussions that he has had with children since he became the commissioner. They feel that the main reason that they do not have such respect is that adults are allowed to hit them. As Peter Clarke said in his letter to the Prime Minister yesterday, urging him to support new clause 12:

"As long as the smallest and most vulnerable members of society have less protection from assault than adults, the Government's position is at odds with the title of the Green Paper 'Every Child Matters'."

He goes on to say:

"Smacking children is not only a breach of their human rights, but is linked to an outdated and ineffective approach to raising children."

Children should be afforded the same protection under the law as adults. It is unjust for one human being to be treated differently under the law on the basis of age alone. Children in Wales, the national umbrella organisation for children and young people, does not accept that smacks are mostly loving. It seems a contradiction in terms to say, "You can have a loving smack."

p

Only "outdated" until the next fad. Remember don't need to be taught grammer/spelling /English & other fads ?

Submitted by pete marrable

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I would like to see a ban on abusive violence but am yet to be persuaded by new clause 12. Can the hon. Lady explain why subsection (2) introduces a new defence, which is available to people for smacking their children under certain circumstances? That seems to be out of kilter with the argument advanced by Mr. Hinchliffe in introducing the new clause.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I have been consulting my hon. Friend the Member for Wakefield because I am uncertain about the point that the hon. Gentleman is making. I am afraid that I cannot answer that point.

Photo of Mr David Hinchliffe Mr David Hinchliffe Labour, Wakefield

Subsection (2) takes account of the concern that we should not take action where, as I mentioned in my speech, a parent may be faced with a child consistently running into the road. I have done this with one of my children and I accept that I did it because I was concerned about danger. There will be exemptions. The law would not take action in such circumstances. Surely that is a common-sense approach.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I thank my hon. Friend for helping me out.

Child protection agencies say that smacking is often a result of loss of control by the adult. Children in Wales has concrete evidence of injuries to very young children where parents have felt justified in their actions because the defence of reasonable chastisement exists. By not removing that defence completely, we will feed into that justification.

I am also very concerned about clause 56, which should be removed. It allows parents to justify common assault as reasonable punishment; the message is, as the "Children are Unbeatable!" briefing tells us, "Carry on smacking."Many people have expressed concern about parents being criminalised, but as has been pointed out, the new clause is not about that; rather, it is about giving parents support and help with positive parenting. If it were accepted, it would be accompanied by a great deal of help, education and support; it cannot be introduced by itself overnight. There would be a change in climate and we would do all that we could to help and support parents. The message would be clear and the Government would be giving a clear lead on what is acceptable.

At the heart of all this is the question, "What is in the child's best interest?" and taking a parent to court will almost always not be in their best interest. Mr. Thomas said that in Germany, where smacking was outlawed in 2000, it appears that no parents have been prosecuted since then. Early research suggests that there has already been a major shift in public opinion away from physical punishment. My hon. Friend Mr. Griffiths drew our attention to Sweden, where public opinion has changed. A Government have to lead, and the evidence from other countries shows that on this issue, public opinion has followed.

This issue is also important for all those present who campaigned against domestic violence. When we campaigned in the 1970s, we were told that such legislation would be unworkable and that in any case, "She must have done something to deserve it." In the early days of Women's Aid, domestic violence was considered a trivial issue and we had to campaign to get it up the political agenda. Of course, there was also the question of not interfering in family life.

Photo of Sandra Osborne Sandra Osborne Labour, Ayr

I agree with my hon. Friend. Does she agree that given that we have achieved zero tolerance of violence against women, children deserve the same?

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I thank my hon. Friend for that intervention. Our long experience of domestic violence issues has led us to a position of zero tolerance, and I am proud of the fact that only last week our Government introduced legislation on domestic violence.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

Linking this issue back to the point made by Mr. Robathan, is it not true that children who are smacked and subjected to violence at home are much more likely to be aggressive towards their siblings, to bully other children, to get involved in antisocial behaviour, to be violent to their future spouses and to commit violent crime?

p

On what empirical evidence is this sweeoing claim made ?

Submitted by pete marrable

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I thank my hon. Friend for that intervention and I certainly agree with him.

Many of the arguments against the new clause that we have heard today we have been through before in other surroundings. Some people say that smacking does no harm, but there is evidence that it does. We are also told that such a provision would be unworkable.

Photo of Betty Williams Betty Williams Labour, Conwy

Is my hon. Friend aware of the view of the Joint Committee on Human Rights on clause 56? It says that the clause "perpetuates the current uncertainty" about what constitutes reasonable chastisement, and that as such, rather than reducing unfair and unnecessary prosecutions, as the Government suggest, it will simply encourage them.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I thank my hon. Friend for that intervention; I agree.

We have an opportunity to increase protection for children. It is up to us to take a lead in this field, to think of the many children who have died at the hands of parents or carers, and to think of the step that we can take today to help to protect them in future.

Photo of Julie Kirkbride Julie Kirkbride Conservative, Bromsgrove

I shall be very brief. Following on from the comments of Julie Morgan, I should point out that those who support the new clause have not explained how banning the smacking of children and criminalising all parents will lead to a change in the number of tragic deaths of young children in the UK. There is simply no basis for the connection that has been made. People who are wicked enough to want to kill or sexually abuse a defenceless child are, in my opinion, beyond the realms of the law. No modest measure to say that all parents should not smack their children will influence their behaviour in any way. The case has not been made.

I would not want to smack my child, but I do not want to criminalise other parents who might believe that it is an appropriate way of dealing with their children. I ask Members to think about circumstances in a supermarket, for example, where a parent smacks a child who has just destroyed a display. What are the staff supposed to do—bring in the police, corral the parents or what? What will happen if a child is upset about being smacked in the home and calls the police? They often do not turn up for a burglary, so are they to turn up because a child has protested about being smacked by their parent? It makes a nonsense of the law and I implore hon. Members to vote against the proposals of Mr. Hinchliffe.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

We have had an interesting debate and it is good to see the Chamber so full. What a shame that it was less full earlier for other parts of the Bill with equally important provisions.

As Mr. Hinchliffe said, this is a highly contentious issue. The fact is that we are all here because we care about children and none of us—whichever side of the argument we stand on smacking—wants to bring about more harm to children than already exists. All those who have supported the Children Bill want tougher measures against the perpetrators of violence, such as that against Victoria Climbié, and let us not forget the other 80 children a year on average who are harmed by it. More importantly, we want to prevent violence from happening in the first place and give protection and better life chances to looked-after children. We want to do all of that with as little intrusion as possible into the private lives of decent, hard-working, loving families.

This part of the Bill is a mess. I remind hon. Members that provisions on smacking were not in the original Bill and it is a shame that the issue has overshadowed coverage of the many important parts of this important Bill. In the Lords, the Liberal Democrat peer, Lord Lester, cobbled together this amendment to criminalise smacking, despite his own party's policy, which is to criminalise it altogether. In the Commons, the Liberal Democrats supported a motion and will be whipped to defeat the amendment of their fellow Liberal Democrat peer. Labour peers were allowed a free vote in the House of Lords as long as it was to vote against the outright ban amendment.

History is repeating itself in the Commons tonight. Here we have three choices. The first is to retain the Lester fudge or "middle way" amendment—

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I will not give way because I do not have time.

The second option is to vote for the amendment proposed by the hon. Member for Wakefield in favour of an outright ban. The third is to vote for the Isle of Wight amendment to return to the status quo. Only Conservative Members will decide the issue on the basis of a genuinely free vote this evening.

We already have a good child protection record in this country, despite some high-profile cases. According to the UNICEF figures provided by my hon. Friend Mr. Robathan, we compare favourably in respect of the number of child deaths to other European countries, particularly Sweden. I am appalled at some of the speeches made in the debate and at some of the comments made outside the House, which suggest that a parent who in extremis smacks his or her child is only one step away from becoming a child abuser or killer—another Victoria Climbié case. That argument does not strengthen the case.

The Children Bill is designed to improve the protection of children yet further. There is no research to prove the causal link between moderate smacking administered by loving parents and violent effects on children. Suggesting otherwise is insulting to decent families trying to bring up their children in difficult circumstances.

As Mr. Boateng said when he was a Health Minister,

"The overwhelming majority of parents know the difference between smacking and beating. They know how to ensure good social behaviour in a loving and caring way."

Are we seriously suggesting that some parents get up each morning and pledge systematically to smack their child at least six times that day? It just does not happen like that.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I will not give way.

Smacking is a last resort if a child has failed to respond to anything else, especially if the child is causing harm to siblings or putting himself or others in danger.

How are we to judge the amendments before us today? I believe that there are four criteria: whether there is a significant body of support for change; whether the law is working well as it stands; whether the proposals are workable and proportionate and whether there will be knock-on effects; and, finally, whether the relationship between the state and families will be undermined. There is support for change. We have heard about all sorts of opinion polls, the latest of which, from MORI, suggested that 85 per cent. of parents say that we should allow smacking to continue. Interestingly, 40 per cent. of people said enforcing a ban on smacking would be a waste of police time, and only 12 per cent. said it should be illegal in all circumstances.

When the Government carried out their own consultation back in 2001, the Minister for Industry and the Regions—then a Health Minister—found that 70 per cent. of the public opposed a change in the law. She said:

"We do not believe that any further change to the law at this time would be appropriate. It would neither command widespread public support nor be capable of consistent enforcement."

The Prime Minister said:

"Our position is that it is a matter of individual choice for parents and the Government believe that most parents accept and understand there is a difference between discipline and abuse."

I do not see that there is overwhelming pressure for change.

Is the law bust and do we need to fix it? Again, we have heard the figures: in the past three years, only 11 cases of reasonable chastisement have been pleaded in the courts, of which five brought acquittals. The Government themselves found that there was no improper use of the defence of reasonable chastisement. That is an important point. It is not as though there is a problem in the judicial system.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

May I go on to my third point about the workability and proportionality tests? Clause 56 and Lord Lester's amendment seem to have created an unholy alliance against them on the ground that they are unworkable; that includes children's charities, anti-smacking Members of Parliament and the police. The hon. Member for Wakefield cited the Association of Chief Police Officers. The "reddening of the skin" test is surely unworkable. What about children with sensitive skin, dermographia or medical conditions, and what about ethnic minority children? It would be a lawyers' paradise. The NSPCC says that clause 56 is likely to result in unfair and unnecessary prosecutions.

Let us remember another deficiency in the Lester amendment, which is the idea that a battery can be committed without the victim suffering any kind of injury. Thus, any touching can constitute battery. It need not necessarily involve a harming of the body, and that can be shown by the fact that a battery can take place even if the victim did not feel the touching. Is that not disproportionate? Are we really saying that parents who smack their children could be prosecuted with up to a five-year jail term, as is proposed under the new clause?

Surely any attempt to define smacking as a criminal offence or narrowly to define reasonable chastisement is fraught with difficulties. Scotland tried to do it, wanting to ban blows to the head, shaking, use of implements, and smacking for the under-twos. The Scots are now having to back-track. I have a good deal of sympathy with what they were trying to achieve, but are we not just creating an instruction manual for how to beat a child? Parents will be able to rush off to get the rule book to see what they are actually allowed to do.

Trying to define severity by codifying the law on, for example, the duration and frequency of a smack or the child's personal characteristics is fraught with problems. What about the psychological punishment being meted out? How do we gauge that? Surely we should rely on the existing law, which has at least five tests—the prosecution of cruelty, wounding, grievous bodily harm, actual bodily harm and common assault—that can be applied to parents who really do go over the top.

There will be a knock-on effect on professionals. The already stretched resources of police and social workers will be stretched yet further. Fear and confusion among parents will be exacerbated by the fact that the margin for error has greatly decreased and the custodial penalty massively increased—tenfold. A mother who makes a mistake about the precise interpretation of the law could face very serious consequences. If she commits actual bodily harm, the maximum penalty is five years in prison, but what is currently common assault has a maximum of six months in jail, and that is, in some cases, now to become actual bodily harm.

It will be extremely easy to make false allegations about parents under the Government's proposals. It will be easy to make a serious criminal allegation against the parent whose child slips and bruises himself by accident. Many loving parents already fear being unjustly accused by neighbours or social workers, and the new proposals will add to their concerns. Parents may even be afraid to present their children at a doctor's surgery if they have marks in case they are accused of child abuse.

The fourth and final test is whether the change would undermine family and children relationships. Will it promote undue intrusion by the state? Surely it will. It will mean undue intrusion by the state into the lives of decent, caring families who are trying to bring up their children as best they can, often in difficult circumstances. It is a legitimate concern that the changes proposed in the law would give rise to an unprecedented level of unnecessary and potentially damaging state intrusion where children are looked after well and are at no risk of abuse.

One wonders where it will all end. There are many things that parents do to and for their children that it would be quite inappropriate, if not illegal, to do to another adult. Why pick just on smacking? Perhaps soon it will become illegal for parents to send a child to his room—imposing incarceration on another human individual.

If the proposals fail to pass those four tests—I believe that they have so failed—the burden of proof that falls on the prosecution should be removed. The law should remain as it stands and we should return to the status quo. Those are the options before the House this evening. I know that Opposition Members will exercise their free vote in an intelligent manner and in the best interests of the welfare of children.

p

A superb summing up.

Submitted by pete marrable

Photo of Margaret Hodge Margaret Hodge Minister of State (Education and Skills) (Children)

I recognise the passionate feelings and views held by Members on both sides of the House and I appreciate that new clause 12 is an attempt to be constructive. However, the Government cannot support what amounts to an absolute ban on smacking.

The Government's position remains unchanged: it is vital that we protect children from violence and abuse. The House will know that one of the driving forces behind the creation of my post and the development of this Bill is our determination to strengthen the way that society safeguards and protects its children. That is why we took seriously the representations from the children's charities and others to the effect that the defence of reasonable chastisement was being misused by parents who were harming their children. It is also why we supported a free vote in the House of Lords on Lord Lester's amendment, which would have removed the defence of reasonable chastisement for acts of actual bodily harm, grievous bodily harm or cruelty. It is for that reason that Labour Members will be offered a free vote on the matter tonight.

I recognise that that does not go far enough for some hon. Members, who believe that the level of harm required by the offence is too great a threshold. However, actual bodily harm has been defined by the courts as any hurt or injury calculated to interfere with health or comfort. That seems to me to offer quite broad protection. Clause 56 provides additional protection for children and tightens the existing law. Some of the cases in which there was a misuse of the reasonable chastisement defence would no longer be able to use that as a legal defence.

It is nonsense and wrong to suggest that clause 56 would create a new loophole, or that it would legitimise acts of harm and abuse. It tightens the law but it does not change the standard of evidence needed to prove actual bodily harm or anything else, as my hon. Friend Mr. Hinchliffe suggested.

Clause 56 provides additional protection for children but it does not criminalise parents for administering a light smack to their children. The Government are tightening up on a defence that was misused, but we are not creating a new offence, as to do so would be wrong. Actual bodily harm, grievous bodily harm and cruelty do not require that serious injury must be suffered. As the Attorney-General told the House of Lords, actual bodily harm is not confined to physical harm but can include psychological harm, for example.

The Director of Public Prosecutions is reviewing charging standards and the Government are toughening the law. At present, when a decision is being made about whether to pursue charges, no regard is given to children's physical strength and vulnerability. That is what the DPP is considering, and changes that have regard to those matters should be welcomed.

Photo of Margaret Hodge Margaret Hodge Minister of State (Education and Skills) (Children)

No, because I do not have time.

The Joint Committee on Human Rights has been critical of Government on this matter, but it recognised the positive impact of clause 56 when it said in its report 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."

It would be very odd, to say the least, if anyone who wanted to encourage parents to seek alternative forms of discipline voted to remove this clause.

I turn now to new clause 12, which the Government cannot support. All hon. Members believe that it is vital to strengthen the safeguarding and protection of children, but it would be wrong to create a new offence by imposing a ban on smacking. That would leave parents wondering whether a trivial smack could land them in prison. We cannot deal with the misuse of a defence by creating a new, inappropriate and ill-conceived offence. There is a world of difference between a light smack and violence or abuse. We should recognise that the vast majority of parents understand that difference and would never harm their children deliberately. Some people argue that minor smacks will not be prosecuted, but the new clause would make smacking a crime, so there is no guarantee that that will be the case. It is for Parliament to be clear and to make the law. We cannot expect the Crown Prosecution Service to pick and choose which crimes it does, or does not, prosecute in the light of a clear statement by Parliament that all smacking should be a criminal offence. The confusing gap between the effect of the new clause and the claims made by its proponents, as well as the fact that the Government simply do not believe that every single instance of parental smacking should be treated as a criminal offence, have led to our decision not to offer a free vote. No one decides lightly to smack a child, and most people feel bad and guilt-ridden about doing so. They believe that they have failed if they resort to smacking, but do hon. Members really believe that we can support good parenting by adding to those bad feelings by threatening the strong arm of the law? Is not a better way of changing the culture positively to encourage and support good parenting in the home? That is what our Sure Start programme aims to do, as do the children's fund, through many projects that it supports, and the parenting fund. We want to offer more support to good parents.

I turn to the amendment tabled by my hon. Friend Mrs. Curtis-Thomas, which was supported by my hon. Friend Huw Irranca-Davies. I recognise the reasoning of my hon. Friend the Member for Crosby in calling for a review of the effects of clause 56 once it has been in operation for two years. I agree wholeheartedly that when significant extra legal protection is introduced by the clause we should look closely at its practical effects. I am afraid, however, that her amendment does not meet its intended objective. None the less, I can give a clear commitment that two years after clause 56 comes into effect we will review the practical consequences of those changes to the law, and will also seek parents' views about smacking. We will lay a copy of the results before Parliament.

This important debate has rightly engendered much passion in all parts of the House. I understand and respect the sincerity and strength of the views of all hon. Members, but I urge them to consider that while we want to stop the misuse of a defence that could lead to children being harmed or abused—I believe that clause 56 achieves that aim—we do not want to be responsible for introducing a new offence that could criminalise thousands of parents throughout the country who are trying their hardest to do their best for their children. They love and cherish their children, and want to establish a framework of discipline while protecting them from harm and endeavouring to support their well-being. They try their hardest to get it right.

A total ban on smacking could criminalise most parents. That is surely not what we are about. Let us focus on the important job of safeguarding and protecting children who are in real danger of harm and abuse. Let us support parents in that most difficult and important job of bringing up their children. Let us legislate in a clear and practical way, which will properly benefit children and young people. I urge hon. Members to accept clause 56 and reject new clause 12.

Question put, That the clause be read a Second time:—

The House divided: Ayes 75, Noes 424.

Division number 305 Orders of the Day — Children Bill [Lords] — New Clause 12 — Reasonable punishment

Aye: 75 MPs

No: 423 MPs

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Tellers

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Question accordingly negatived.

Madam Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Amendment proposed: No. 23, in page 37, line 18, leave out clause 56.—[Mr. Andrew Turner.]

Question put, That the amendment be made:—

The House divided: Ayes 208, Noes 284.

Division number 306 Orders of the Day — Children Bill [Lords] — New Clause 12 — Reasonable punishment

Aye: 208 MPs

No: 284 MPs

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Nos: A-Z by last name

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Question accordingly negatived.