Children Bill [HL]

– in the House of Lords at 11:00 am on 20th May 2004.

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On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

moved Amendment No. 78:

After Clause 5, insert the following new clause—

"CONSISTENCY OF LEGISLATION WITH CHILDREN'S WELL-BEING

(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—

(a) make a statement to the effect that the provisions of the Bill have been assessed for their contribution to the well-being of children, relating to the aspects specified in subsection (3)(a) to (e), and that, in his view, the provisions of the Bill do not act to the detriment of any child or group of children in respect of those aspects; and

(b) make available in each Library of the Houses of Parliament a copy of the assessment made under subsection (1)(a); or

(c) make a statement to the effect that although he is unable to make a statement under subsection (1)(a) the government nevertheless wishes the House to proceed with the Bill.

(2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.

(3) For the purposes of subsection (1)(a), the aspects of children's well-being are—

(a) physical and mental health;

(b) protection from harm and neglect;

(c) education and training;

(d) the contribution made by them to society; and

(e) social and economic well-being."

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

The amendment would place on the Government a duty similar to the one under Section 19(1)(a) of the Human Rights Act 1998 to make a statement of compatibility with the five outcomes proposed in the Bill. It would also ensure a "child impact assessment" process for all new legislation, based on the same five outcomes as those that the Children's Commissioner under Clause 2 and local agencies under Clause 6 will have to account for. This would provide a much needed and effective mechanism for improving co-ordination and consistency of policy-making affecting children across all departments and levels of government.

The Bill proposes that one of the functions of the Children's Commissioner will be that of reporting on progress on the outcomes, and that the outcomes be used as the framework for planning and accountability for the new children's services authorities. But it is equally important that national government should themselves monitor and account for its impact on children's well-being.

The Children's Society, which suggested the amendment to us, is committed to the full implementation of the UN Convention on the Rights of the Child—as, indeed, am I and many other Members of the Committee. Ideally, we want the process of child impact assessments and the activities of the Children's Commissioner and local partnerships required by the Bill to protect and promote children's rights under the convention.

The Government have already agreed to an amendment on the commissioner's activities in this respect, and that is most welcome. The form of the Bill, however, is to rely on the five outcomes and, with that one exception, the Government's response to all requests to strengthen explicit reference to the UNCRC in domestic legislation has been consistently to resist what they see as a movement towards full incorporation of the convention.

I have serious concerns about how the outcomes will be implemented across government departments in all policy and legislation. It must be clear that optional or selective use of the outcomes would put at risk the aims and potential values of the outcomes framework. The use of the outcomes framework must be binding across government structures, not merely at local level. As stated in the Green Paper, Every Child Matters:

"Everyone in our society has a responsibility for securing these outcomes".

Surely the crucial place to start considering whether responsibilities in relation to the outcomes are being met is with new legislation and policy. Starting with a clean sheet, presents the best opportunity to get it right.

We draw attention to the fact that the Bill is before the House of Lords at the same time as the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which proposes a number of measures that would adversely affect refugee children. That is a matter that noble Lords debated earlier this week and which would have benefited from a child impact statement to resolve the matter of withdrawal of benefits, which is very contentious.

The introduction of a formal process of assessing the impact of new policies and legislation on children has been recommended by a range of important bodies. These recommendations arise from and promote the UN Convention on the Rights of the Child as a yardstick for such assessments. The committee that commented on our implementation of the convention stated that it was concerned about the lack of,

"any formal process to ensure that new legislation fully complies with the Convention. The Committee . . . is concerned that the State Party"— that is, the UK—

"does not ensure compatibility of the legislation with the Convention throughout the State Party".

The Joint Committee on Human Rights highlighted in its recommendations that child impact assessment would benefit from an,

"even more comprehensive consideration of the impact of proposed legislation on children themselves", not just through the prism of the impact on their convention rights.

The Minister for Children, Young People and Families in 2002, the right honourable John Denham, in evidence to the Joint Committee on Human Rights, said on the subject of child impact assessment:

"I do not have an issue of principle about having child impact assessments".

That is what the former Minister had to say, and I hope that the situation still applies with the current incumbent.

The requirement that we propose in subsection (1)(b) of the amendment to publish the child impact assessment in the Libraries of the Houses of Parliament would significantly aid all parliamentarians in their consideration of whether and how the needs of children are best met and sufficiently protected by any new legislation, in the same way as the All-Party Parliamentary Group for Children benefits from the child impact statements which we commission on every Bill. They are enormously helpful, inform our activities in your Lordships' House and help us to improve Bills as they pass through your Lordships' House, for the benefit of all children. I beg to move.

Photo of Baroness David Baroness David Labour

I support the general intention of the proposed new clause, which aims to introduce what has become known as "child impact assessment" of new legislation. When I chaired the All-Party Parliamentary Group for Children in 1997 to 1998, we commissioned and published child impact assessments on all the Government's Bills. It was a worthwhile experiment and I hope that it will now be taken up with a formal requirement for assessment.

However, the assessment should not be in relation to the outcomes for children, as suggested in the proposed new clause. The obvious framework for assessment is the UN Convention on the Rights of the Child, at which the noble Baroness may have hinted, and the set of detailed obligations to children, accepted by government with all party support when the convention was ratified in 1991. Parallel with the existing requirement for a statement of compatibility with the rights of the European Convention on Human Rights should be a similar requirement related to compatibility with the full range of human rights. In the light of the Government's concession on Tuesday, I hope that that will now be carefully considered.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I listened with great interest to the comments of the noble Baroness, Lady Walmsley. I have not had a chance to study the amendment in detail, but on the matter of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, the Government have argued that provisions are being made due to the irresponsibility of parents who have been through a thorough system and been rejected, and that we cannot allow those parents to use their children to undermine the system. The noble Baroness's approach might have been very useful in that debate, because it would have made it clear that however irresponsibly parents may behave—and regrettably some, though not most, parents do behave irresponsibly—we must always think very carefully about the welfare of children.

Under this Bill, the Government have not made clear how many families they expect to be affected by the legislation. They say it will be a few, but there is no hard fact there. If people are subject to this part of the legislation, they will be made homeless; they will not be able to get employment, except through illegal means; and their access to education will be undermined because they will be fearful of immigration officers catching their children—and with health, a similar problem applies. In such cases, I see the proposal as being a helpful way forward in preventing such dangerous legislation for children being implemented in future.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I am grateful to Members of the Committee who have spoken in this debate, and to the noble Baroness who moved the amendment. Let me start by reassuring her that of course we support the principles behind the amendment, which are perfectly consistent with what the Minister previously said. Since she raised the issue of the 10th report of the Joint Committee on Human Rights, perhaps I should just remind her what the Government said. We said:

"The promotion and protection of children and their interests—through legislation, policy and effective service delivery—is a priority for this Government, as is the greater involvement of children in Government decision-making".

That is where I want to start—by examining how we come at this principle in slightly different ways, but ways which are more effective in involving children.

Clearly, the concept of child impact statements is not new, and we are delighted that the all-party parliamentary group does what it does in that regard. We are sympathetic to the idea, and we are particularly pleased to note that the amendment refers to outcomes set out in Clause 2(3). I take the point made by my noble friend Lady David that outcomes are only one aspect, and what we are concerned about is the process that defines and ultimately delivers those outcomes with some confidence. As Members of the Committee will recall from the debate on the first day of the Committee stage, those outcomes are based on the children's own definitions of what is important to them.

There is no doubt that all the legislation that we pass in this House has an impact on children—I can think of no exceptions—and it is not the case that it is only children's services that have that impact. However, if we are to produce better outcomes, we must think and act along a wide range of agencies and procedures as well as through the process of legislation.

I assure Members of the Committee that there are three ways in which we do that at the moment. Ministers already consider such matters when planning and discussing legislation across government. There have been changes in recent years. From the Department for Education and Skills, my right honourable friend Margaret Hodge comments from her perspective of Minister for Children, Young People and Families. She has a specific remit to press children's interests across government.

In addition, we now have a new Cabinet sub-committee—MISC9(D)—which is chaired by my right honourable friend the Secretary of State for Education and Skills. That has broad cross-government representation, oversees the delivery of children's services and, I am delighted to say, includes my noble friend Lady Ashton. The point is to ensure that policy-makers take account of the views of children and young people directly in formulating policy and legislation.

In our response to the JCHR's 10th report, we affirmed our commitment to involving children, their parents and carers in children's organisations in the development of policy, legislation and services. We reaffirmed that in 2001 when the Government laid down core principles for the involvement of children and young people in government decision-making. That is a major step forward, because it lays down a common framework within which government departments must work to involve children from the outset, in developing policy right through to implementation and evaluation. We have chosen that approach because it is a formative route. It is not retrospective, but it is the one way in which one can guarantee that children are involved in the planning stages of legislation.

As part of that strategy, departments across Whitehall have developed annual action plans that set out how they will involve children. Those are available on the children's and young persons' website; I refer, for example, to the development of legislation around the Children Trust Fund and the Treasury and the Adoption and Children Act 2002, which involved the DfES and the Department of Health. Those action plans should be seen in the context of everything else that we are doing to involve and to hear the views of children; for example, the consultation process on the 14-to-19 phase of education.

Importantly, civil servants will be involved in changing the culture of what we expect and listen to. Civil servants in a number of departments have already received training in involving children and young people in policy making. The National Children's Bureau, in conjunction with PK Research Consultancy, has produced a handbook entitled Building A Culture Of Participation. It offers workshops to officials across Whitehall which focus on how to listen to young people and how to use their views to bring about a change.

Child impact statements will not do that job. Considering the effect of legislation on children and young people retrospectively will never be as effective as involving them in an informative and influential role. I agree that these are recent developments and that we have some way to go. I take the point that noble Lords have made. However, I believe that this is the right way to go.

Our approach is supported by the functions that we have given to the Children's Commissioner, which is where the human rights argument will come into play. The Bill gives the commissioner the function of promoting awareness of children's views. Now that the Government have accepted Amendment No. 39, as the noble Baroness agreed, he will have to do so within the framework of the UNCRC. That will include his consideration of proposed new legislation. He will have the UNCRC framework in mind; he will be responsible; he will know that he will have to look at the impact of new legislation on children. Clause 2(2)(b) gives him the function of advising the Secretary of State of the impact on children of proposed legislation. That is how we shall be able to follow the outcomes that he determines.

It is more appropriate and effective to mainstream these processes across government by way of the commissioner's additional remit rather than to carry out what could be a lengthy and bureaucratic assessment. In some cases, that assessment might be made by people who are not experts in children's issues. With those assurances, I hope that the noble Baroness will agree to withdraw her amendment.

Photo of Lord Elton Lord Elton Conservative

The full weight of the Minister's reply was based on the degree of consultation with children themselves in the formulation of policy. She said that, with that process, we could be confident of making everything consistent with the aims which the Minister is wishing to test. Surely, in light of what she has said, it will be easier, not more difficult, to sign this paper.

My only question about the amendment is why that statement of consistency should not be written on the front of Bill, where there is already a statement by the noble Baroness, Lady Ashton of Upholland, about human rights. We could then all see the contentment which the Minister has.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

As I have explained, we are offering an alternative process, which deepens the level of consultation. A statement on the front of the Bill is not necessarily sufficient. As I have said, the temptation would be to treat that as a bureaucratic exercise, which could simply be rubber-stamped, without our having to go through processes that would really test us on the extent to which we have reflected on the impact of legislation on children.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I thank the Minister for her reply and other Members of your Lordships' House for their support. I take on board particularly the comments of the noble Baroness, Lady David. Her suggestion is an improvement on my amendment, but it was written in that way in an attempt to fit it in with the Government's stated intentions in terms of the five outcomes of the Bill. I hoped in that way that I might tempt the Government to accept it, but I certainly also accept the comments of the noble Lord, Lord Elton. If all the consultation to which the Minister referred is being carried out—it is very welcome—it would be easy for the Government to sign such a paper and to put a statement on the front of the Bill.

Will the Minister write to inform me whether the remit of her right honourable friend Margaret Hodge, in looking at the impact of legislation on children, will be based on the five outcomes set out in the Bill or on the UNCRC?

I did not know about the training that civil servants are undertaking and it is very welcome. It is important to talk to children, of course, but we cannot expect children to be as knowledgeable of the effect of legislation on them as others might be. That is why we would want to go further than the consultation with children and have experts look at the impact of legislation on children and advise the Government accordingly. The Government could then make the kind of statement that we are proposing. In the mean time, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Elton Lord Elton Conservative

moved Amendment No. 79:

After Clause 5, insert the following new clause—

"MEANING OF "CHILD"

For the purposes of this Part "child" means—

(a) a person under the age of 20;

(b) a person over the age of 19 who is receiving a service or services under sections 23C to 24D of the Children Act 1989 (c. 41); or

(c) a person over the age of 19 but under the age of 25 who has a learning difficulty, within the meaning of section 13 of the Learning and Skills Act 2000 (c. 21) (persons with learning difficulties), and is receiving services under that Act; and "children" is to be construed accordingly."

Photo of Lord Elton Lord Elton Conservative

In moving the amendment, I shall speak also to Amendments Nos. 100, 109, 184, 235, 246 and 247, which are probing amendments. I invite your Lordships to look not at the mechanisms but at the principles that they advocate.

The Bill's principal intentions, as set out in the Long Title, are the establishment of a Children's Commissioner and to make provisions about services to and for children. The question of who, exactly, children are is therefore of some importance.

The first place in which one would look for the definition is what in normal circumstances would be the only place: the definitions clause. Clause 49 states:

"In this Act . . . 'child' means a person under the age of eighteen (and 'children' is to be construed accordingly)".

"In this Act" is not subject to the provisions of any other subsection of the Bill, so one supposes that it applies across it.

However, the whole of Part 2 is again directed at children's services in England—services that one would suppose are provided for and on behalf of persons "under the age of eighteen". Clause 6 states that the Bill is directed to secure co-operation to improve their well-being. However, Clause 6(8) states that arrangements under this section may include arrangements relating not just to persons under the age of 18, but to persons in three different age brackets, ranging right up to 24.

I welcome that. It introduces a valuable principle into the Bill. Those other young people are included for a very good reason: although they are now in their majority, they are for various reasons still as vulnerable as in their minority and as other minors commonly are. By recognising that calendar age is no kind of reliable guide to the physical, mental or moral age of a person, Clause 6(8) introduces an invaluable principle to the Bill. The purpose of what are, I emphasise, probing amendments is to explore whether that principle has been sufficiently widely applied.

Accordingly, the last amendment in the group, Amendment No. 109, would delete the definition in Clause 49, and the remaining amendments would substitute for it supplemented versions of the wider definition implied by the wording of Clause 6(8). They would add a new person to the category of children, defined in Amendment No. 110 as,

"persons under the age of 25 detained in a prison, secure training centre, contracted out prison, contracted out secure training centre, young offender institution, or local authority secure accommodation".

It is scarcely necessary to say why I feel it necessary to include the amendments, but perhaps I can quote from the report of an announced inspection of HM Young Offender Institution at Stoke Heath, between 2 and 6 October 2000, by the chief inspector. The opening lines state,

"over the past five years I have published a number of reports of inspections of young offender institutions that have recorded wholly inappropriate or unsatisfactory treatment of and conditions for children and young persons held in Prison Service custody".

It says, "and young persons". Children are covered in the Bill, young persons are not. Those people are exceedingly vulnerable and a later amendment in my name will address them in particular.

My other amendments in this group follow the Clause 49 drafting in defining "child" in the singular and inferring the definition of "children" in the plural. The reverse process has been used in the Bill itself, in Clause 6, and I have adopted that process, too, although I have no idea why it was done. The Committee will also notice a slight difference in the wording of the first subsection of my amendment compared with Clause 6(8). That is necessary in this and all the amendments because, if I had simply imported Clause 6(8)(a) to (c) into the definition, it would have had the effect of excluding everyone under the age of 18. So this is just sweeping them up into that group.

Other amendments apply the same criteria, mutatis mutandis, to other parts of the Bill. I hope that the Minister will explain to us the possibly quite simple reasons why the extended definition of "child" in Clause 6(8) was not used elsewhere in the Bill—that is important—and, secondly, the Government's response to the proper position that young people detained under criminal justice legislation, for instance, should have access to the Children's Commissioner even over the age of 18.

Those are the two principal objects of the amendments. Other matters may come up in discussion. I beg to move.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I speak to Amendments Nos. 79, 109, 235 and 246 which stand in my name and that of the noble Lord, Lord Elton. I shall be brief as he has eloquently put our concerns.

On Amendment No. 79, the Minister has already said that she will give consideration to the possibility of including care leavers over 18 in the remit of the Children's Commissioner. I am most grateful to her for saying that and I look forward to further discussion with her on that point. As Amendment No. 109 is consequent on that amendment I shall not go into its detail.

Where there is a possibility that local authorities may co-operate to improve the well-being of young people over 18 who have been in care and are still subject to services under children's legislation, Amendment No. 235 would place a duty, under Clause 2, on local authorities and other agencies to co-operate to improve well-being. Last night, the Minister attended a meeting where care leavers spoke to us about the difficulties they have found in housing provision, access to education and access to mental health services. So I hope that the Minister will consider this amendment helpful in improving outcomes in this area.

The Minister recently wrote to my noble friend Lord Hylton about the impact of the Children (Leaving Care) Act. Clearly, positive steps are being taken as a result of that Act. However, as she said in the letter, we have started,

"from a low base. 49 per cent of care leavers are now in education, training or employment on their 19th birthday, compared with 86 per cent of all 19 year-olds".

So I look forward to her response to that particular question.

Amendment No. 246 would allow care leavers over 18 to have the benefit of the duty that the Bill places on local authorities to promote the educational attainment of young people in care. So it would create a continuing duty to promote the educational attainment of young people benefiting from local authority services because they have been in care. I hope the Minister will look sympathetically on that.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

I am very grateful to the noble Lord, Lord Elton, for raising the issue of the different age definitions. It might please him to know that my noble friend Lady Andrews and I spent some time when we first looked at the Bill trying to understand why there are different age groups. Officials have given me a quite helpful table which I propose to send to the noble Lord and the noble Earl, Lord Listowel, and to place in the Library of the House so that others can have the benefit which I have had of a slightly more diagrammatic way of describing the position. I shall attempt to explain why, as the noble Lord, Lord Elton, rightly pointed out, we have differences. However, those who find that it is too technical or that I have not put it well may find the tabulated form very useful.

The noble Lord pointed to what I believe is the right direction. We have written the age groups to ensure that the Bill works in practice, to ensure that we link the ages to the services with which children are provided—in a sense, service provision is the defining fact—and, of course, to ensure that it fits in with other legislation. Therefore, if I may, I shall go through the amendments and say, in a little detail, precisely what we are seeking to do.

As the noble Lord, Lord Elton, said, Amendment No. 79 broadens the remit of the commissioner to young people up to the age of 20, as well as to care leavers and young people with learning disabilities and difficulties up to the age of 25. As I believe I said in earlier discussions, we believe that it is important to be clear that the age of majority—the age of adulthood—is 18. In the main, that is the "cut-off" point, if I may so describe it, for the work of children's services, with very big and notable exceptions to which I shall return.

So we think that, in the main, the commissioner's work should be for children and young people aged 18 and below. We celebrate the fact that young people who have reached the age of 18 have become adults. It is adult services that will be looking after them, with, as I say, some notable exceptions. I do not believe that those over 18 would expect the Children's Commissioner to be seeking their views, but I am sympathetic to the issue of the exceptions about which the noble Earl rightly reminded us. As I said under his Amendment No. 42, I am taking advice, and will be talking to him, about extending the commissioner's role to the groups identified.

As I said, the issue is difficult because it is about definitions and the services that these young people receive. We will therefore consider extending the commissioner's remit in the two cases that the noble Earl identified. I hope that that will enable him to feel contented on that issue.

Amendments Nos. 109 and 184 taken together would apply the wider definition across Part 2 of the Bill. Amendments Nos. 235 and 246 would extend this to Parts 3 and 5, Amendment No. 247 being consequential on that.

If I may, I should like to explain the purpose of Clause 6(8). As I think the noble Lord indicated, it is designed to ensure that no barriers would artificially cut across existing services. We would not want the partners in co-operation to be prevented from participating because some of their services are for young people over 18. The services covered include Connexions, which provides services for all young people up to their 20th birthday, and the Youth Support Services, which is the equivalent in Wales.

Photo of Lord Elton Lord Elton Conservative

The noble Baroness said something that has taken me by surprise and that I suppose should have been clear. The Bill currently does not extend the interest of the commissioner, or accessibility to the commissioner, to people over 18 in these institutions; it merely means that those institutions can remain in contact with the commissioner although some of the people within them are actually in contact with the commissioner. In other words, it is not an extension at all; it is merely a definition of the sub-18 group.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

I was not referring to institutions but to services. When we discussed the commissioner, I said that his remit in the main covered children from the ages of nought to 18. However, there are certain groups, in particular care leavers and those with learning disabilities, where it might be appropriate, because of the nature of what has happened to those individuals, for the commissioner to have an ongoing interest in them. We agreed to consider that matter.

There are certain services available to children and young people—Connexions, care leavers and young people with learning difficulties being the obvious three—where the relevant age range is much broader. We did not want to create an artificial inappropriate cut-off point with regard to those services; hence the fact that the Bill has different age groups in different clauses. That applies within the overview that the remit of the commissioner and of children's services generally applies to the age group of minus nine months, in some cases, to 18. We seek to ensure that we do not cut across services rather than institutions. I shall come to the specific point that the noble Lord made about the criminal justice system in a moment.

As I said, we have linked the provisions in the Children Bill to the provision of services in terms of how they operate on the ground and to existing legislation. There is a very strong link in practice to the Children Act 1989, which defines children generally as under 18.

The other clauses in Part 2 do not rely on a definition of a child. The coverage of the information-sharing provision, the remit of the director of children's services and lead member and the coverage of the new inspection arrangements are all defined by the functions and services to which they refer. As such they already in practice—I hope that this will please the noble Lord, Lord, Elton—cover the broader age range as the relevant definition is the service not the age of the child. I apologise as this is a rather technical matter. I assure the Committee that the grid will be very helpful.

Similar arguments apply to the miscellaneous provisions in Part 5. There are two exceptions: the private fostering clauses—which we shall debate later—where we already have an established definition of a privately fostered child under 16, or 18 if the young person has a disability. We believe that it is important not to disturb a recognised definition which, as I understand it, works well.

Clause 47 concerns the power to give financial assistance. The purpose of this clause is to broaden the department's ability to give financial assistance to those providing services to children, young people and their families—typically voluntary and community organisations—in a way that reflects its increased responsibilities. In keeping with this, the clause already allows for support to be given for the purposes of working with children and young people up to the age of 20.

I have given a rather detailed explanation of the different age ranges and the core principles relating to previous legislation or to the service provision that is on offer. That results in the Bill referring to different age groups. We have given a promise and a commitment to look again at the commissioner's remit in terms of the specific groups to whom the noble Earl referred. However, we consider that generally the age of 18—when a child becomes an adult—is the relevant age limit in this regard.

For those caught up in the criminal justice system the age of majority is 18. It is important to recognise that those in the criminal justice system who are aged 18 are considered adults in that system. Therefore, although I respect the view of the noble Lord, Lord Elton, and, indeed, that of the noble Earl, with whom I have already discussed the matter this morning, that more needs to be done in that regard it is not a matter for this Bill or this Minister. It is a question of whether more can be done in that regard in the criminal justice system. Through the Children Bill we take a strong interest in young people in institutions. However, there is a cut-off point at 18. The Committee may disagree with that but it is the reality. I should be happy to discuss that further with noble Lords on another occasion.

The measure describes the services that will be provided, supports previous legislation and ensures that services will be able to operate effectively. I hope that noble Lords will consider that I have answered their questions. I shall send noble Lords the grid to ensure that the matter is absolutely clear.

Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Shadow Minister, Education & Skills

I have not previously spoken in this debate. We give our general support to the amendment. I am very grateful to the Minister for her clarification. It has helped the Committee a great deal. However, we have a minor amendment, Amendment No. 109ZA, that we shall discuss later. Will the Minister ensure that a copy of the grid is sent to noble Lords on these Benches as well as to other noble Lords?

Photo of Lord Elton Lord Elton Conservative

I look forward with eager interest to the arrival of the grid, which will make a great deal clearer what I have sought to follow in the current debate. It seems to me that there is not the merit in Clause 6(8) that I accorded to it, but I may be corrected in that regard when I read the grid. Therefore, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

moved Amendment No. 79A:

After Clause 5, insert the following new clause—

:TITLE3:"PART 1A

REASONABLE CHASTISEMENT

(1) Battery of a child cannot be justified in any proceedings on the grounds that it constituted lawful punishment.

(2) Battery of a child is not unlawful if the act amounts to the use of reasonable force in order to—

(a) avert an immediate danger to the child or any other person;

(b) avert an immediate danger to property; or

(c) prevent the commission of a crime, or an act which would be a crime if the child had reached the age of criminal responsibility.

(3) For the purpose of subsections (1) and (2) above "child" means a person under the age of 18.

(4) Section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under sixteen) is amended as follows.

(5) In subsection (7) at end insert "subject to subsection (8) below".

(6) After subsection (7) insert— "(8) Corporal punishment administered to a child cannot be justified in any proceedings on the ground that it was administered in pursuance of a right exercisable by virtue of subsection (7) above. (9) For the purpose of subsection (8) above, administering corporal punishment to a child means doing anything for the purpose of punishing that child which would constitute unlawful battery." (7) This section extends to England and Wales only.""

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

It is a great honour and privilege to introduce to this Chamber an opportunity to right a historic wrong for children. The significance is great, and the time is long overdue. Yet, the aim is very basic. I apologise to the Committee that my cold makes my voice come and go.

The amendment's aim is simply to allow children the same legal protection from violence that adults enjoy today—no more and no less. The proposed new clause does not create any new offence. It does not interfere in any way with parents' rights to use reasonable force to protect and restrain their children and to punish in non-violent ways. The proposed new clause would revise the common law "reasonable chastisement" defence. The leading case dates back to 1860, when Chief Justice Cockburn ruled in a case where a teacher had beaten a child to death that,

"By the law of England, a parent . . . may for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment".

I shall explain the amendment. Subsection (1) of the proposed new clause would mean that battery of a child could no longer be justified as a lawful form of punishment. Subsection (2) would make it clear that parents can use reasonable force to protect children and property and to prevent commission of a crime. Loving, caring parents need to use physical actions at all times, especially with young children, to protect them—to grab and lift them, to restrain them and so on. That is part of day-to-day parenting. This reform would not interfere with that at all.

Subsection (4) of the proposed new clause would amend Section (1) of the Children and Young Persons Act 1933, which is the only place where the "reasonable chastisement" defence is confirmed in statute. Again, parents' rights to punish children and use physical actions to protect them and other people and property, or to prevent a crime being committed, are preserved. Put most simply, the proposed new clause would place children in the same position as adults under the law on assault and meet the UK's human rights obligations.

Peter Carter QC, the leading authority on offences of violence and chair of the Bar human rights committee, has advised on the wording of the proposed new clause. He has provided reassurance that it would not result in increased prosecutions of parents for minor incidents and would not create any new offence. I am, of course, happy to share his legal opinion with any noble Lords who wish to see it.

We can be confident that parents would be prosecuted for minor assaults of their children only in the most exceptional circumstances, for example, where a child is particularly vulnerable. Adults are seldom prosecuted for minor assaults on other adults, such as slaps on the arm et cetera, and the same would be true for children. Before any prosecution, the Crown Prosecution Service has to consider whether two tests are satisfied: first, that there is sufficient evidence, and, secondly, that it is in the public interest. The interests of the child are invariably considered as part of the public interest, and prosecuting parents is very seldom in the interests of children. What public interest could there be in prosecuting a loving parent for a trivial assault? Any attempt to bring a private prosecution for assault is reviewed by the Attorney-General, who may discontinue the case or take it on, in which case the same tests are applied.

This Government have done a great deal to encourage good parenting and to safeguard children. The efforts by government organisations and individuals are admirable, but the state of the law undermines them. The reform is not to increase formal interventions in family life. The current threshold that triggers a formal investigation of abuse is when a child is identified as suffering or likely to suffer significant harm, as stated in Section 47 of the Children Act. There is no reason why that threshold should change.

The noble Lord, Lord Condon, apologises for being unable to be in his place today, but he has expressed his support in principle for the amendment. I have also had a very useful conversation with the Chief Constable of Dyfed-Powys, Terry Grange, who is the current chairman of the Association of Chief Police Officers. He feels that the time has come for change in the law, and that guidance from the Home Office and Crown Prosecution Service can provide protection from any vexatious complainant, adult or child, and ensure implementation of the principles expressed in Working Together to Safeguard Children to guide inter-agency co-operation on child protection.

My own experiences working as a junior doctor and seeing how difficult it was to prosecute even flagrant abuse is, sadly, still the experience of my colleagues. We live in a society that has condoned violence against children. In the 1990s, the Department of Health commissioned a research study that gathered information from parents and children. Parents were interviewed in confidence and admitted to very high levels of corporal punishment, with the admission of violence doubling when both parents were interviewed. Three quarters of mothers said that they had already smacked their baby before its first birthday, which is before language has developed.

Overall, 91 per cent of children had been hit, with the youngest and most vulnerable hit most often. Almost half the children were hit weekly or more often. One fifth had been hit with an implement, and 35 per cent had been punished severely, which is defined as with the intention, potential, or actually to cause harm to the child. That included actions that were repeated, prolonged or involved use of implements.

I know what it is like to be lonely, living in a high-rise block with no money and two babies, one of whom cries incessantly. Without the restraint of having worked in paediatrics and having seen the results of shaking and hitting, I would have lost my rag. I fear that once I hit I would have been unable to stop, such was the pent-up emotion that I felt. That was as a young mum. The purpose of this reform is to send clear and unequivocal messages to parents that assaulting children, like assaulting adults, is wrong and unlawful.

The trouble is that hitting a child starts as a response to the pent-up feelings of the parents. Most parents report that they regret having hit, but it escalates so easily into more serious violence. Aggression breeds aggression. Almost all abuse takes place in the context of so-called punishment or so-called discipline. Research clearly shows that corporal punishment has all kinds of negative effects on mental health, parent-child relationships, increased anti-social behaviour and child aggression. Light corporal punishment easily and often escalates into injurious violence. Children who were pinched, slapped, shaken and spanked were seven times more likely to experience severe violence such as punching, kicking or hitting with an object. They are being taught that the way to cope with feelings of frustration in oneself is to hit someone who is vulnerable. Our society has condoned that.

There is huge support for the amendment. The Children are Unbeatable! Alliance is the largest alliance of organisations ever assembled to campaign on a single issue for children. The National Assembly for Wales debated the matter in plenary in January and, by 41 to nine votes and subsequently on a unanimous vote, stated that it,

"regrets that the UK Government continues to retain the defence of reasonable chastisement".

I shall listen very carefully to the Government's response today. As a Member of the Cross Benches, I hope that all parties in the House will allow us a free vote on the issue if that seems necessary on Report. I beg to move.

Photo of Lady Saltoun of Abernethy Lady Saltoun of Abernethy Crossbench

I do not quite understand. If the amendment does not create a new offence, what is the point of having it? Presumably the offence is already there, so we do not need the amendment.

I am very worried. We are getting rapidly into a situation in which the police and social services can interfere on very small evidence, if any at all, to an absolutely intolerable extent in family life. We are leaving people wide open to the possibility that a child, disgruntled because its parents will not let it do something that it wants to do or give it something that it wants, will telephone Childline and say that it has been beaten. It might do so just for a lark. Then in come the police and social services, and once they are on someone's back it seems from what I am told that it is very difficult to get them off. We need to be very careful. I do not envy parents nowadays. There are so many pitfalls and areas in which, if they do one thing wrong, in come the social services and police. I am very glad that I am not a parent now.

One of my great grandmothers used to spank all her children regularly every Saturday night, whether they needed it or not. She said that if they did not need it then, they very soon would. It was all done in perfect good humour and they adored her. Suppose that Childline had existed and one of those children had been egged on by a chum who had said, "For a lark, ring Childline. Go on, ring Childline and see what happens", and they did. The poor mother! We have to be very careful about giving children such powers, and that is what such provisions would do.

Photo of Lord Morgan Lord Morgan Labour

I would like to declare my total disagreement with the views that we have just heard, and to support the amendment very strongly. I am also a member of the alliance to which the noble Baroness, Lady Finlay, referred. It has shown that the present law condones violence. It legalises assault on children in a way that does not happen in relation to adults. In fact, the original legislation applied to wives and domestic servants. Now it is simply children, the most vulnerable and sensitive group in our society, who are not protected so are subjected to violence in such a way.

The state of the law at the moment seems totally unsatisfactory for everyone. It is wrong for parents, who are encouraged to believe that they can discipline their children simply through being physically stronger. Their children cannot hit back. That seems an appalling basis for legislation. It is harmful for other members of the family. Criminologists have looked at the indirect victims of crime—the siblings. To see their brothers and sisters assaulted is deeply upsetting to them. The violence can be devastating for children, psychologically as well as physically. It can erode their relationship with parents. It is more likely to make them bullies or people with delinquent or violent behaviour later in life.

We should reject the kind of folk wisdom that we have just heard, such as the idea that you hit children just because you hit them, "It never did me any harm", or the treasured legend of the policeman who disciplined people by giving them a good clip over the ear. That seems an uncivilised basis for the law or social behaviour.

Ten countries have already adopted the principles of the amendment, which the noble Baroness moved so admirably. There is no evidence of snooping into family life or of mass delinquency; on the contrary, the behaviour of children is shown to have improved in the many countries where the measure has been implemented. Incidentally, as the noble Baroness said, that is the view of those in one important part of the British Isles—namely, Wales. If we had proper devolution in this country, the Welsh Assembly would be enabled to outlaw violence in the way that it wishes.

The purpose of the amendment is to encourage not a new culture of snooping but a culture in which respect and compassion govern the way that we treat our children. It seems to me that in no way can these qualities be more conclusively directed and instilled into our society than by stating categorically that it is morally and legally wrong, and physically and psychologically harmful, for adults to assault their children. I hope very much that a free vote will be allowed on the amendment. I hope that the provision is added to the Bill and then, and only then, will this otherwise admirable Bill be a measure of which this House can be truly proud.

Photo of Baroness David Baroness David Labour

I strongly support what the noble Lord, Lord Morgan, has just said and, indeed, what the noble Baroness, Lady Finlay, said in moving the amendment. I strongly support the proposed new clause.

We have been trying for a very long time to give children equal protection under the law. I remember the late Lady Wootton of Abinger making earlier attempts to end school corporal punishment in 1973. She said:

"If a thing is wrong today, it should be put right today, not tomorrow or the day after".

We have moved on. We have banished corporal punishment from all our schools, from care homes, from foster care and, most recently, from all forms of day care, including childminding. But we cannot keep children waiting any longer for the logical completion of this reform.

In my long experience of advocating the protection of children from corporal punishment, I am used to adults finding all kinds of excuses and endless delaying tactics. Very few these days are prepared to come out and actively defend hitting and deliberately hurting children, although unfortunately there are still some. Special words, such as "smacking" and "spanking", are used to make people feel better about what they are defending, which is indefensible.

The debate shifts to how this reform will be implemented. As my noble friend Lord Morgan said, 10 other countries, including big countries such as Germany, have done it, and the sky has not fallen in. Some people talk as though the prosecution and child protection services in this country are completely out of control. If people really believe that revising this archaic law will lead to inappropriate police or social services interventions, which are not in the interests of children, then the answer is to ensure clear guidance and not to question the principle of equality of protection.

In any case, such critics should defer to the experts—those working in the various professions involved in child protection. They all support this reform. The Children are Unbeatable! Alliance is the largest alliance of organisations and projects ever assembled to campaign on a single issue for children. Why should any of us feel competent to contradict that professional consensus?

There is also a tendency to trivialise this issue. We no longer trivialise domestic violence against women, and there is no reason to trivialise the huge scale of domestic violence against children. The noble Baroness, Lady Finlay, quoted the research commissioned by the Department of Health: three-quarters of mothers smack their baby before the age of one; and one-fifth of children are hit with implements. And we know that any research using interviews with parents is going to understate the problem. Parents will not exaggerate the number of times they hit their children.

We do not like to talk about this issue because it is so personal for many people. We do not like to think badly of our parents or of our parenting. That gets in the way of moving on, but move on we must. The Government are under considerable international pressure from human rights monitoring mechanisms. The Committee on the Rights of the Child twice recommended removal of the reasonable chastisement defence—in 1995 and again in 2002. The European Committee of Social Rights, which monitors our compliance with the European Social Charter, requires this reform. The committee summed it up well in 2001, when it stated:

"The Committee does not find it acceptable that a society which prohibits any form of physical violence between adults would accept that adults subject children to physical violence".

The abolition of school corporal punishment was triggered by key votes in this House, and I very much hope that we will send the Bill to the other place with this new clause a part of it. This is an issue on which governments have traditionally allowed a free vote, and I hope very much that the Minister will confirm that at an appropriate stage.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I think that we should probably hear from the right reverend Prelate first.

Photo of The Bishop of Chester The Bishop of Chester Bishop

I have an excuse: this is Ascension Day. Most European countries have not only abolished corporal punishment; they have abolished sittings of bodies such as this on what should be a public holiday. For many Bishops, this creates a difficulty; in fact, I shall have to leave quite soon because of commitments back in the diocese. The right reverend Prelate the Bishop of Portsmouth cannot be here today, and I feel that I should offer a word on behalf of the many church organisations which he sought to represent in putting his name to the amendment.

We are broadly supportive of the proposed new clause. The time has come to move on in how children are regarded in relation to physical punishment. For the reasons given so eloquently by the noble Baronesses, Lady Finlay and Lady David, and the noble Lord, Lord Morgan, I support the amendment. I shall not go over those reasons, which they all expressed so well.

The caveats that I want to enter are these: if there is no possibility of physical punishment, the temptation will be for a society to engage in forms of mental and non-physical punishments, which themselves can be demeaning and very oppressive. A little earlier, the noble Lord, Lord Elton, referred to Stoke Heath young offender institution. I went to that prison during the past year and was simply shocked at the way in which the young people were treated. There was no physical violence as such, but psychologically they were demeaned and regularly sworn at. Therefore, if, in the criminal law, we now make it unacceptable for children to be restrained or punished physically, we need to be alert to the dangers that may accrue.

An old African proverb states that it takes a village to raise a child. One problem of parenting in our society is that people are often isolated in their responsibilities as parents. For example, the nearest blood relative that my wife and I have is well over 100 miles away. Often parents lack the broader support that they really need. Therefore, if we take this step, which personally I, and I think most members of this Bench, would support, that will not be the end of the discussion. It will open up profound issues about how we genuinely provide for the needs of children in the future in a positive way on the back of what is essentially a negative step. I believe that there would be a great need to spell out the safeguards against an improper criminalising of parents, who are doing their best in difficult circumstances.

I was reassured by the legal opinion referred to earlier, but it seems to me that that would need to be gone into with some care, with guidelines being offered, so that complaints were not pursued in inappropriate ways if this change were made. But, on the grounds of respect and compassion for children and the fact that we live in a society where violence tends to erupt more and more, I believe that this change could be a significant move towards making our society more civilised in the 21st century.

Photo of Baroness Richardson of Calow Baroness Richardson of Calow Crossbench

I, too, support the amendment. In speaking to it I represent the views of a great many Christians across a wide range of Churches, particularly those which have come out in support in official statements, such as the Methodist Church, the United Reform Church, the Roman Catholic Church and many children's charities.

I am aware that some Christians have defended what they call "Biblical discipline", using such authorities as Proverbs—to,

"spare the rod, and spoil the child".

But I remember, too, that Jesus gave deep respect to children and also said, in a slightly different context, that what was done to one of those little ones was done to him.

The amendment acknowledges that reasonable force may sometimes be needed to avert danger to the child, other people or property, or to prevent a crime being committed. However, what is completely denied is that such force is permissible, or even capable of delivering—in the words of the 1860 defence—the ability,

"to correct what is evil in the child".

The root of the word "discipline" is "to learn". What is learned by a child being beaten is surely that it is okay to bully others if they do something that one does not like. There is an opportunity here to reform the law to give a powerful signal that not only do children have human rights but also the use of force against the vulnerable, particularly the young vulnerable, is unacceptable in our society.

There is recognition that what happens within the family is deeply important. Amending the law now will encourage the development within families of positive parenting skills—I agree with the right reverend Prelate—that may help to reduce violence in society as a whole.

Photo of Lord Harrison Lord Harrison Labour

I, too, support the new clause proposed in the amendment, which was so ably introduced by the noble Baroness, Lady Finlay of Llandaff. I declare an interest as a parliamentary ambassador for the NSPCC.

I find the concept of "reasonable chastisement" to be basically unreasoned and unreasonable. I wish to make three points. First, it undermines the efforts of those who wish to safeguard children in our society. It has always seemed to be a curiosity, to say the least, that we should not permit violence done to adults, but we should allow it to be done to children. That is a curious ranking of priorities.

Secondly, does not the idea that a smack could be given to children inhibit those who are working to safeguard children, because there is a lack of clarity in the law? The amendment would clarify the law and would help with its administration.

"Reasonable chastisement" also undermines the opportunities for extending non-violent discipline. All of us who have been parents know that, from time to time, children must be disciplined, but surely it punctures the imagination if we have this resource of "reasonable chastisement" always lying by to be picked up, when we should devise other methods of ensuring that children do not move into harm's way and, where necessary, find methods of non-violent chastisement.

I also invoke the "slippery slope" argument that physical abuse begins early and can be extended into violence. That was clearly demonstrated in the instance of the Victoria Climbié inquiry. In 2002, the parliamentary Health Select Committee made that point when it observed:

"What happened to Victoria involved the apparent escalation of discipline and punishment: as Manning told the inquiry. Her injuries began with 'little slaps'".

Thirdly, there is the European scene, about which I am keen and it is also useful to make comparisons with other colleagues and countries elsewhere in the European Union. How stark it is to learn that where we experience the deaths attributable to physical abuse of one to two children every week in this country, in Sweden, which abandoned such physical abuse—corporal punishment—in 1979, there were recorded only four deaths attributable to physical abuse from 1979 to 2000. We will not be entering into unknown territory here, others have gone before us and we should take heed of the success that they have made of the abandonment of corporal punishment.

Photo of Baroness Warnock Baroness Warnock Crossbench

I very strongly support the amendment. We have an admirable opportunity to add this clause to what is, in general, an admirable Bill. The report of the committee of 2002 contained—to me and, I am sure, everyone—shocking evidence of the prevalence of hitting babies. I had no idea that there were so many people who hit babies under a year old or under 18 months. It is the most barbarous thing to go on permitting in this country. Can the Minister reassure us that, if we sent the Bill back with this new clause, there would be a free vote in the other place?

Photo of Lord Blackwell Lord Blackwell Conservative

I ask noble Lords to forgive me for intervening on this amendment without having spoken on the Bill previously. There are very different views in this Chamber and in the country at large about what is and is not "reasonable chastisement". No one would disagree at all with the proposition that the law should do everything that it can to protect children from violence of a form that would damage them. But what is being expressed in this House is a view that any form of physical chastisement—otherwise known as "corporal punishment"—is wrong by definition.

There is an alternative view which says that there is a dividing line between what might be regarded by some people as acceptable chastisement and violence involving hitting babies and children that is clearly unacceptable in a civilised society. I fear there is a danger that this Chamber is seeking to impose on families a particular view on the issue, when we should be cautious about intervening in what parents believe is their appropriate right to decide how they bring up their children—as long as it does not move over the line into what everyone accepts is unreasonable violence from which the current law should provide reasonable protection.

If the Committee is attempting to say that any form of chastisement is inappropriate, I fear that we are moving towards the kind of "nanny state" intervention that will make many people out there feel that the law is going too far into the nooks and crannies of the role of families and of how they want to bring up their children. So I urge noble Lords strongly to think twice before taking the law to that level of private intervention.

Photo of Baroness Whitaker Baroness Whitaker Labour

In supporting this amendment I remind the House that I am a trustee of UNICEF UK. I differ from the noble Lord, Lord Blackwell, because it is an unusual pleasure in your Lordships' House to represent a large number of voters. Over 2,000 people were interviewed by MORI two months ago, in a representative sample, that is, of course, one which indicates a nationally representative number, to see what they thought of changing the law to give children the same protection from being hit as adults have. Nearly three-quarters said they would support such a change. Parents, women and young adults were even more likely to support it. Fewer than 10 per cent said they would oppose it.

Parents have changed their minds. In 1999, 23 per cent of MORI's survey thought hitting could be a good way to teach the difference between right and wrong. In 2001, the National Family and Parenting Institute survey found only 16 per cent in favour. Now the percentage is even lower. None of this is to say that parents should not exercise discipline. But they do this within a normative framework agreed by society, either tacitly or explicitly. In classical Rome, fathers had the right to kill their children. In some parts of the world, parents can sell their children. We do, and should, set norms of which we approve. In clarifying a small part of the normative framework for adult behaviour to children, our amendment does not interfere with the right of parents to punish their children and nor does it change the threshold for formal investigation or breach the family's right to privacy.

I, too, think that this is an idea whose time has come. That is not to say that everybody in your Lordships' House shares it. That is the fate of new ideas, even if their time has come. Not everyone recognises change. Even such small changes in the law can make people wary as they cling to what they consider are the tried and tested concepts.

Tried, indeed. A father who used a belt to whip his four year-old son for refusing to write his name was acquitted, using the "reasonable chastisement" defence. A father who hit his 12 year-old daughter in the face such that she had difficulty in opening her jaw was acquitted. Tested, certainly. Bruises were still evident a week later on the eight and nine year-old foster children of another acquitted parent.

It is easier to move when other circumstances have fallen into place. We have arrived at a stage in our society when the law gives our children a right to education, access to health services, family life, shelter and protection, and freedom from discrimination. We should also give them equal protection with adults against assault. We think of children as of equal worth with adults, I am sure. Let us now have the opportunity to demonstrate that conviction by a free vote. I am proud of this Government's achievements. I would like to be proud of one more.

Photo of Lord Turnberg Lord Turnberg Labour

I, too, strongly support the amendment. I shall speak briefly because most of what I might have said has been said much more eloquently. The particular point I want to make relates to the concept of "reasonable chastisement", which I find difficult. It is essential that we define it clearly and narrowly as in the amendment. What might be thought reasonable by one person might be considered assault by another.

Anyone who has worked in an accident and emergency department in any of our hospitals will recognise the children who all too frequently have suffered at the hands of their parents. Those parents either believe that they were behaving perfectly reasonably or deny completely any responsibility for the multiple bruises or fractures that their children display. I am not speaking of the normal bruises, bumps or fractures which all children seem to acquire during what seems to be a normal active life. I am talking about the evidence of systematic beatings, which is difficult or impossible to explain away.

Reasonable chastisement lies on a spectrum of physical chastisement and it is very much dependent on how individual parents view reasonableness. And what seems reasonable to them might seem quite unreasonable to your Lordships. There are far too many instances where the fluid, uncertain, moveable boundary between reasonable and unreasonable has been overstepped. I therefore very much favour the amendment and the possibility of a free vote.

Photo of Baroness Stern Baroness Stern Crossbench

I want to add my voice to those supporting the amendment. I very much support the points made so effectively by my noble friend Lady Finlay and others. I want to make two points. One is on the importance of law not just as something used in response to an act, but as the highest expression of our values. And so the law should not say that doing violence to another human being is allowed in certain circumstances. This is the normative framework so well expressed by the noble Baroness, Lady Whitaker.

My second point has been alluded to, but it is worth repeating. Treating children violently has long-term and serious consequences. Some noble Lords will remember the longitudinal study carried out by John and Elizabeth Newson, who followed a cohort of children through their lives looking at various child-rearing variables at the ages of seven and 11 and links with how these children turned out in adulthood. I want to quote them briefly. They reported:

"Those which are of particular importance are those which still 'shine through' as having significance even when we set aside the effects of class, sex and family size; those which do shine through can be fairly assumed to be causative in their association. The measures which stand out as being most predictive of criminal record before the age of 20 are having been smacked or beaten once a week or more at 11, and having had a mother with a high degree of commitment to formal corporal punishment at that age".

A considerable body of research supports that important study.

Perhaps the reason so many professional organisations support the amendment is that they have had years of experience in looking into the background of people who end up committing violent acts. Nearly always, there is a violent childhood somewhere in the background. Anyone who has experience of reading, for example, parole reports will know the strong effects that a violent childhood can have.

Much more needs to be done than just this change in the law to reduce the high and unacceptable levels of violence we endure in this country, but it is an important part of it and I hope we shall take this opportunity.

Photo of Lord Northbourne Lord Northbourne Crossbench

I wish that I could give completely unqualified support to the amendment. It is beautifully drafted and I congratulate my noble friend Lady Finlay and many of my Cross Bench colleagues and others who have spoken in favour of it.

There is no doubt that there is a real problem. I am fully conscious of the fact that violence breeds violence in the next generation and that uncontrolled anger creates uncontrolled anger in the next generation. These are huge problems which need to be addressed. It is wholly desirable to try to achieve the objective of the Bill, which is, effectively, no violence in the home. The question is: is this best done by legislation? Is it best done by attempting to legislate for intimate relationships within the home?

Here I declare an interest because I want to speak briefly about the possible effect on parents. In this context, I was instrumental in founding, and was for seven years chairman of, the Parenting Education and Support Forum. My concern is that many parents do not know any other way of disciplining their children. From my conversations, I believe that there is a real possibility that many parents who are disciplining their children through violence will either continue to do so or will simply throw in the towel and say, "If that's what the Government want, let the little bleeders go and create anti-social behaviour". I see the noble Lord, Lord Morgan, shaking his head. There are parents who will say those things.

Even people who are deeply resistant to the idea of parenting orders and to being shown another way of parenting say, when they have been forced to learn a little of how the parent/child relationship can work, "Why was that information denied to us? Why did my child have to commit a crime before I was given this help?". I may table an amendment at a later stage, but if the Government are to introduce this provision, they should make it conditional upon the universal availability of affordable education and support for parents.

Photo of Lord Elton Lord Elton Conservative

I support what the noble Lord, Lord Northbourne, has just said. I believe that the two things go together. In writing a report for the Government years ago about discipline in schools, I was very much struck by the cascade effect. One would find teenage mothers in school who were themselves the daughter of a teenage mother. Some intervention has to be made to break the awful chain before we start using legislation which could quite seriously disrupt the lives of people without any positive result.

Photo of Lord Hylton Lord Hylton Crossbench

I entirely support what my noble friend Lord Northbourne has just said. I believe that there are many responsible, loving, caring parents up and down the country who would take a slightly different point of view from that so eloquently expressed by many who have supported the amendment. I do not know what line the Government will take but, if they are supportive, I suggest to those who tabled the amendment that they consider widening the three exceptions in subsection (2).

Photo of Lord Swinfen Lord Swinfen Conservative

I do not agree with the amendment. The noble Baroness, Lady Finlay, in moving the amendment said that it would create no new offences. Therefore, I see no reason to put it on the statute book. It is otiose. There are occasions when reasonable chastisement is justified for the safety of children and for the safety of others. Reasonable chastisement, given quickly in a loving family, is soon over, the offence finished with and the family goes on. Other forms of punishment can go on for hours or days and do not help the relationship between parents and their children.

I remember some 50 years or so ago, I and two other boys being caught breaking the rules at school. Two of us were beaten, but the other one could not be beaten for medical reasons. As the right reverend Prelate said, other forms of punishment can be much harsher. That boy had to translate 1,000 lines from English into Latin. It took him days. In my view the punishment was very much heavier and harder than the three strokes of the cane that I had. In fact the strokes warmed me up on a cold winter's evening. I am certain that I benefited from it far more than my colleague whose punishment lasted several days.

Reasonable chastisement within the family is occasionally necessary. Some of the examples given so far in the debate have been obvious examples of illegal behaviour which, I am afraid, would still take place if this provision became law. It will not improve the situation.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

I do not wish to comment on the spirit in which the amendment is tabled, but I want to take up the cautionary note sounded by the right reverend Prelate; namely, that it would be an innovation to the criminal law. Noble Lords will want to look very carefully at the wording in which the innovation is put before the Committee. Underlying the amendment is the proposition that an assault upon a child by a parent is not to be justified if it constitutes punishment. In subsection (2) there is the proposition that,

"Battery of a child is not unlawful if the act amounts to the use of reasonable force in order to—

"(a) avert"— and what follows in each of the paragraphs is what is clearly intended to be a matter of fact.

Perhaps this misses something that the criminal law has recognised as being important in a defence of someone charged with an offence of intent; namely, that he or she is not guilty of the offence if he or she honestly or genuinely believed that the state of fact existed which constitutes the offence. One can see that in terms of subsection (2)(a), (b) and (c), a parent may have to make a quick decision about what is about to happen and may be entirely wrong about what was in prospect. But surely it would be wrong in such a case to deprive that parent of what appears to be an exclusion from the principal offence which is constituted in this amendment.

Equally, I comment on subsection (2)(c), as the Committee may want to look at the terms used. The paragraph states:

"prevent the commission of a crime, or an act which would be a crime", and so on. The Committee may want to consider how that would work in the context of what effectively is being given as a defence to the person who is accused of the offence of battery as intended in the clause.

I do not wish to enter upon the spirit in which the amendment is tabled. The Committee has already heard many views expressed, but I suggest that the Committee must be careful at this stage to ensure that, if one is to take this forward, one does not deprive those who may be affected of a defence which is open to anyone in the criminal law; namely, that of honest and genuine belief in a state of affairs that has led to the act being committed.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I have added my name to this sensible and fair modernisation of the law on the basis that it seeks to give children the same right to equal protection under the law of assault as adults enjoy. The Government have done a good deal for human rights, with the Human Rights Act 1998 and the Freedom of Information Act 2000; they have given equal rights to people with disabilities, people of all races and creeds and they have even outlawed discrimination on the basis of age. So I find it difficult to understand why they are so reluctant to give equality to children. It is the smallest, most fragile and vulnerable in society who need equality the most, and yet their voice is still not being heard. Nor is the voice of the many people who support this move to give them equality being heard.

There is now massive support for this change, so the Government need not fear that to legislate would be unpopular. The noble Baroness, Lady Whitaker, has already referred to the recent MORI poll, which shows that a vast majority of the public are in favour of a change. There is also a great deal of political support. Nearly 200 Peers and MPs are signed up to the Children are unbeatable! alliance; 55 per cent of Labour MPs support reform, with 45 per cent overall in another place supporting a change and only 35 per cent opposing it.

The pressure from those who have looked at the matter in detail is impressive. The parliamentary Joint Committee on Human Rights, the House of Commons Health Select Committee and, of course, the National Assembly for Wales have all called for reform after careful consideration of the case for and against.

There is also enormous international pressure, to which the noble Baroness, Lady David, referred. More than 350 children's and professional organisations support reform, as do the Catholic Church in England and Wales, the Methodists, the United Reform Churches and many other faith groups. I am most grateful to hear today of the support of the right reverend Prelate the Bishop of Chester and that of his brother Bishops in this House.

With such a broad spectrum of people wanting change, why are the Government hesitating? They must remember that they govern only with the consent of the people, and the people want this reform. They want this protection for their children and grandchildren, and, if the Government were to hesitate to give a free vote, they would want to know why, given the overwhelming evidence of the benefits reform has brought to child protection, in the 10 other European countries that have introduced an equivalent change.

From our previous debates on this subject, most of your Lordships are very familiar with the case of Sweden, which was the first country to bring in this change. The benefits and the reduction of interventions in family life in Sweden that has been brought about by this fundamental change in the law is very impressive. The reasons, I suspect, are similar to those expressed by the noble Lord, Lord Laming, on Second Reading, and in a letter to Cross-Benchers. I am sorry that the noble Lord is not in his place, but I trust that he will read Hansard, and I hope that I can set his and the Government's mind at rest about some of the issues that have been raised.

First, it is said that we do not need the change because the defence has been attempted only a handful of times and has succeeded only once. This is not true; the noble Baroness, Lady Whitaker, has given details of a couple of cases, and I have details of about eight cases, if any noble Lords would like to see them.

The noble Lord, Lord Swinfen, said that this reform is not needed. It is needed, because it has been used to excuse child abuse. People have got away with unreasonable abuse of children by using this defence, and that is why we need to remove it. However, it is not just the use of the defence but simply its existence which undermines child protection and the work of all those promoting the positive, non-violent forms of discipline for which the right reverend Prelate the Bishop of Chester has rightly called.

The noble Lord, Lord Laming, fears that removal of the defence has become inextricably linked with the creation of a total ban on smacking. As has been said by the noble Baroness, Lady Finlay of Llandaff, the new clause does not create any new offence; it removes the existing defence in so far as it allows the battery to be justified in a court of law as lawful punishment. It thus gives children equal protection under the law on assault—no more and no less. That is what we ask for today.

The new clause does not trespass upon parents' legitimate right—nay, duty—to discipline their children appropriately. Indeed, it carefully preserves parents' rights to use physical actions to protect and restrain their children when in danger, and so on. I hear the wise words of the noble and learned Lord, Lord Cameron, about the detail of that part of the amendment, at which we shall look carefully.

There really are only two alternatives. One is the status quo, which so many of us in your Lordships' House find so objectionable. The other is giving children equal protection from battery, as adults have. What do we mean by the current adult law? If I, for example, were to turn to my noble friend Lady Sharp, who is sitting next to me, and smack her on her arm, that would be an assault. It might get me on "Yesterday in Parliament", but it would not get me in court charged with assault. That is the way the adult law operates, and that is how we would expect the law to operate for children as well. We are asking for equality—no more and no less.

A number of noble Lords, such as the noble Lords, Lord Blackwell and Lord Northbourne, and perhaps the Government, fear the extent of intrusion by the state into family life. We are not suggesting, and the new clause does not imply, any change in the Children Act threshold for formal investigation; that is, that a child is, or may be, suffering significant harm. But violence against children does not justify any less intrusion into the family in the form of clear law than violence against women or vulnerable adults within the family. That is something about which the Government have done a great deal, and I hope that they will follow it through and do the same for children.

These issues have been the subject of human rights judgments which have emphasised that giving children equal protection does not breach rights to family privacy nor, by the way, to religious freedom.

It has been said that the removal of the defence is likely to endanger parenting education and support for the development of good parenting skills. I really do not see how that could happen. Indeed, the publicity surrounding this debate sends a clear message that it is as unacceptable and unlawful to hit a child as to hit anyone else.

I also hope that, following this legislative change, the Government will increase their efforts to help and support parents who are having difficulties with their children. A great deal has been done, but the public need to know that if a defence is being taken away from them, support will be given in its place. It is in everybody's interests that it should be. Besides, parents' organisations support this reform too, so they do not seem too worried about this intrusion.

I am very happy to be able to tell the noble Lord, Lord Northbourne, that both the Parenting Education and Support Forum and the National Family and Parenting Institute favour removal of the defence of reasonable chastisement—

Photo of Lord Northbourne Lord Northbourne Crossbench

On a point of clarification, I did not suggest for a moment that the Parenting Education and Support Forum did not approve of it, but it endorses my condition that proper support and education should be available.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I thank the noble Lord for that intervention, and I absolutely agree with him. I support it too. Hundreds of other organisations working directly with families, including many Sure Start projects, support this reform in the law.

Worries have also been expressed about otherwise caring parents being brought into contact with the criminal justice system through malicious allegations. Such worries are unfounded. From our contacts with police representatives, we know that ACPO does not oppose this reform, and all the other elements of multidisciplinary child protection strongly support it. ACPO has some concerns about the implications for policing, as would be the case with any new legislation, but believes that these can be overcome if appropriate and unambiguous guidance is issued. That is a very important element.

If an assault is reported but it appears that the child has not suffered significant harm, the social services would be informed and no further police action taken. The matter will not even be recorded as a crime. The professional judgment of the social services will then decide whether to offer support and help to the parents, or whatever other action might be necessary to help them. Given that, and the reassurances we have had from the Director of Public Prosecutions that it is highly unlikely that any inappropriate charges would ever be brought, I really do not see how our new clause can possibly be regarded as a total ban on smacking, however bad a method of discipline it might be, or a danger to the reputation of caring parents. However, it is crucial that clear guidance is issued to the police on the implementation of a change in legislation.

I have admitted on previous occasions when we have debated this matter that I did, now and then, hit my children out of sheer frustration and not knowing what better to do. How I wish the help and support that is now available, as well as the understanding about how harmful hitting can be and the knowledge about better ways, had been available to me 30 or so years ago. However, we must move on. I am confident that the way in which this law reform would operate would not have criminalised me. I was a caring parent and my children did not suffer "significant harm" from my actions, even though I regret having hit them—it was never a good way of teaching them how to behave well.

In his letter to Cross-Bench Peers, the noble Lord, Lord Laming, said that he feared that the removal of the defence would be marginal and apply to only a handful of situations, but that the remedy would affect millions of parents. I hope and trust that he is right. Removal of the defence will ease prosecution in those few cases in which it is necessary for child protection and in the best interests of the affected child. If the reform is accompanied, as it must be, by appropriate awareness-raising, on the basis of the experience of other countries, we can be confident that it will lead to rapid changes in attitudes and rapid reduction in reliance on corporal punishment. In that sense, we hope that it will have implications for millions of children and parents.

Since when did this House hesitate to do the right thing out of fear that a few malicious people would seek to abuse the law? From research commissioned by the Department of Health, we know that most children, including babies, are hit and that many are hit often. We have more child deaths per head of population than any other European country. It is that context, together with the principles of human rights and equality, that this reform is aimed to address and I recommend it to the Committee.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I shall speak briefly on something that has been touched on in the debate: parenting education and support. I hope in a helpful way to suggest to the Government that they might consider this as an opportunity to consider whether more funding might be given to parenting education and support. My noble friend alluded to the Parenting Education and Support Forum. It currently has no core funding, although it is central to parenting support; it depends on temporary project funding. It may be helpful to point out that there is an opportunity there to offer reassurance by that method.

Photo of Earl Howe Earl Howe Shadow Minister, Public Services, Health & Education

I approached the amendment with an open mind as, like the noble Baroness, Lady Finlay, and all other Members of the Committee, I detest the very idea of child abuse. I am also instinctively worried by the thought that the defence of reasonable chastisement may be being used to protect individuals who have treated children in a way that would otherwise be classified as abusive. However, I fear that I shall disappoint the noble Baroness, because I cannot live with the amendment.

We need to be clear what the amendment does. It turns all smacking of children—smacking in all circumstances other than when administered in what one might term an emergency—into a criminal offence. That is so no matter how one decides that the law should be administered. The noble Baroness says that in most cases in which parents are caught smacking children, they will not be subject to criminal proceedings. I have great difficulty with the idea that we should classify something as a criminal offence and then say in the same breath that in the vast majority of cases, the law will not be invoked. That brings the law into disrepute.

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

I am sorry to interrupt the noble Earl, but is he calling for a change in the law on adult-on-adult assault in that case?

Photo of Earl Howe Earl Howe Shadow Minister, Public Services, Health & Education

The context of the amendment needs to be seen in the round. It concerns not assaults by an adult on any child but assaults by an adult on his own children. I shall come to why that point is important in a moment.

There is another important side to this, which the noble Baroness completely glossed over. Criminal proceedings are not the only dimension about which we need to worry when a parent is reported as having smacked a child. If smacking becomes illegal, as night follows day that will lead to massive over-intervention by social services. That over-intervention carries two huge downsides. The first will be a wasteful diversion of resources to trivial incidents, when it is real child abuse that social workers should be targeting. Real child abuse may well be lost sight of amid all that.

The second downside is just as bad. I have no doubt that some trivial cases of smacking—not a large number, but some—will lead to families being split up on the judgment of over-zealous social workers. If they choose to do so, social workers will have the law on their side. Children will be taken into care on totally spurious grounds. I fear that I do not share the touching faith of the noble Baroness, Lady Walmsley, in the behaviour of social services. We need to think very hard before we decide to sanction an even greater degree of state interference in family life. Some might say that there is already enough of a risk of that in the Bill.

What the noble Baroness advocates is that any parent who smacks his child as part of normal parenting discipline to teach the child right from wrong will lay himself open to arrest. I find that completely unacceptable. I am sure that everyone should avoid smacking their children if they can, but smacking a child is not the same thing as child abuse. We need to rid our minds of any idea that it is. To say, like the noble Lord, Lord Turnberg, that most parents do not know the difference between the two is nonsense. They do and they know that the law will come down hard on them if they abuse their children—the criminal law is in place to do that. But it is totally inappropriate to bring the criminal law to bear on a parent who is exercising his duty and right to bring up his own children in his own way, provided that he does not cause the child any significant harm.

The amendment contains no mention of harm to the child. It takes as read that all smacking causes harm. I know of no evidence for that and it does not even appear intuitively true.

Photo of Baroness Thornton Baroness Thornton Labour

I thank the noble Earl for allowing me to intervene. I cannot resist asking whether he agrees with the comments made from the Conservative Benches and other parts of the House that the beatings that people received as children did not do them any harm at all?

Photo of Earl Howe Earl Howe Shadow Minister, Public Services, Health & Education

It depends how severe the beatings were. Once again, the noble Baroness is trying to blur the distinction between child abuse and smacking. There is a real difference and I believe that most people know what it is. I can think of other sorts of behaviour by parents that, in my book, are infinitely more harmful to children than smacking. Verbal tirades and the use of sarcasm are the most obvious ones. No one is suggesting that parents should be arrested for them—quite rightly.

What greatly worries me about the amendment is that it would mark a fundamental shift in the legal relationship between parents and children. Here I return to the question posed to me by the noble Baroness, Lady Walmsley. The amendment says that when it comes to physical chastisement, being the parent of the child concerned counts for absolutely nothing, however reasonably the parent may have acted and however loving that parent may be. I repeat: that is just not acceptable. I sincerely hope that the Minister will strongly resist the amendment.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

I shall not attempt in trying to sum up the debate and set out the Government's position to speak as eloquently or passionately or with the conviction of other Members of the Committee. I will not try to sum up what they have said, because many, if not all of the relevant issues have featured in the debate. I should like to say how grateful I am that this extraordinary debate has been full of the kind of conviction and passion that I would expect on such an important and difficult issue.

I begin by saying that we are considering two different outcomes when we discuss the amendment. One position is held by some Members of the Committee and another by others. It is important to fix those clearly in our minds. They are of course both perfectly legitimate positions. The first is that there should be a ban on all physical chastisement of children—the ban on smacking, to paraphrase. That is a legitimate position to hold. The other is that the defence of reasonable chastisement lets people off the hook, whether by their going to court and being acquitted or, as the noble Baroness, Lady Walmsley, said, by the fact that they never get to court because it is in everyone's mind.

They are two slightly different propositions; people may hold both equally. I have found, especially when talking to many different organisations and people who also hold very strong and passionate views on the subject, that sometimes those propositions get interchanged. We are concerned with having equality before the law and removing a defence that, we believe, stops people getting taken to court for abusing their children. Others feel equally strongly that it is about removing the right of any parent to carry out any form of physical chastisement against their children. It is in that context that the Government seek to operate around the amendment in a way that coalesces the two views.

I wish to paraphrase what I said at Second Reading, because it is important that I respond in the context of noble Lords' desire for a free vote. As the noble Earl said, we all abhor violence and abuse of children, and it is vital that children are protected, with adequate safeguards from violence and abuse. The current legal framework provides that protection. The kind of punishment that results in injury is clearly not reasonable chastisement and as such is already against the law. The Government do not wish to interfere with the legitimate and necessary rights of parents within their own families; we will not create a new offence in that context. We are prepared to consider carefully any amendment on the issue, but we will not support a complete ban on smacking. That is the position that I laid out at Second Reading and the context in which I will address the amendments.

It is critical that we all accept that our aim in the Bill is to put the child at the centre of our policies and strategies. However, as noble Lords have been very quick to point out on several occasions, it must be in the context of being in the centre of family life. The Government must be sure that in what they do, through the resources they use and in how they exercise their role, they spend their time supporting families in the best possible way. There was special pleading from the noble Earl on parenting in particular. It was a well made point, and I will take it back as a specific example. The Government must look at supporting parents, to do the kinds of things that we know would help them and to deal with some of the issues that the noble Baroness, Lady Finlay, and others raised about what happens to children and babies. From my experience with the Sure Start programme, I recognise noble Lords' comments about parents sometimes being too quick to use physical discipline and perhaps not understanding the need to support their children in other ways and to think of other forms of discipline. I agree that we need to do much more in all our education programmes for children, young people and parents to ensure that people think about parenting as a critical part of life and to equip them with the tools to do that. I support completely the idea that the Government's emphasis should be on helping people to be better parents.

We must look at what the amendment would do. Having taken legal advice as far as I possibly can and at the highest possible level, I can tell Members of the Committee that the amendment would ban smacking. Noble Lords may be perfectly comfortable with that, but it would be the effect of the amendment. We must therefore review the amendment in that context.

I accept the good judgment and words of the various legal professionals who have been quoted. I shall paraphrase the words of the Director of Public Prosecutions—the transcript is not available—who attended the Joint Committee on Human Rights yesterday. He said that he had seen the amendment and believed that it clearly outlawed battery. He was very conscious that that would mean that even minor assaults would be criminalised under the amendment. Although in many cases minor offences may not come to court, his office could not issue guidance that stated that it would not prosecute in certain circumstances. He could not devise a policy where minor slaps were never prosecuted against. It is important that we understand what the Director of Public Prosecutions said.

The Association of Chief Police Officers has also been referred to. I cannot quote it directly, as it has not issued a formal statement, but as it has been referred to, I wish to outline my understanding of its position. If Parliament revises the law, the association wants the Government to issue guidance making it clear that, when it appears on the basis of the information available that a child is not suffering or at risk of suffering significant harm, the assumption should be that social services will be informed and the report will be recorded by social services but no further police action will be taken. For all of us, that raises the question whether that is the appropriate use of social services resources.

I want to make clear the reason for our difficulty with the amendment. I understand that noble Lords feel strongly that the matter should be taken out of the Government's hands and left to the conscience of each individual Member of your Lordships' House. They feel that that would follow a good record of important issues, perhaps of this nature, being dealt with in that way. I appreciate and understand that, but the Government's responsibility is to ensure that the effect of any proposition is clear and can be understood and achieved. I do not dispute for one second what noble Lords are trying to do, and I have enormous sympathy with their aim. However, if the amendment would create uncertainty in the criminal justice system, the police and social services, and make parents' position in relation to their child ambiguous, I submit that it would be difficult for the Government to allow a free vote. If we did so, we would be acting irresponsibly. I say that not because I do not understand the underlying propositions, but because of the effect of the amendment.

I pay tribute to those who have worked very hard on the amendment and looked at circumstances where parents might slap their child. I am very conscious of the words that we use. We refer to a "trivial smack", which may be offensive to some noble Lords—perhaps it is a way of describing what perhaps we would recognise. Consider the mum in a supermarket, whose child for the fifteenth time has taken the sweets off the shelf and put them in the trolley, and who says, "If you do that again, I will slap your hand". Noble Lords may find that offensive; others may feel that it is acceptable. My question is: would I wish the mother to be prosecuted if that happened? My answer would probably be no. In reality, we would be making her open to prosecution.

That is the basis of my difficulty with the amendment. We cannot have a free vote on something so important on the basis of the attitude, "Don't worry, it will never happen".

Photo of The Bishop of Chester The Bishop of Chester Bishop

I am a novice with the amendment, but would not subsection (2)(c) on the prevention of a criminal act cover the supermarket incident?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

I do not think that the child would be intending to steal the sweets but rather to have the mother purchase them. I am talking about a three year-old. I am sorry that the right reverend Prelate used that example, because it takes us away from the point that we were seeking to reach.

There are circumstances that make the situation difficult. It would be very difficult, not to say irresponsible, to agree the amendment as it stands, because it would create the situation that I have outlined. Essentially, it does not do what I set out at Second Reading. We remain committed to that response and to protecting children who are being abused. If the noble Lords whose names are attached to the amendment believe, as I am sure they do, that by changing this law we can do something more to stop children being abused, we should try. It is important to do everything possible to support children in the context of family life.

I do not stand here to say, "Go away. We are not prepared to listen". If there are ways in which we could make the situation even better and even stronger for children, we should try. My commitment is to ask the noble Lords who tabled the amendment to talk to me about what might be done in that context, but within the context of what I said at Second Reading, and with the understanding of the position that the Government now hold.

Photo of Baroness David Baroness David Labour

Before the Minister sits down, does she agree that it is a tradition of this House and of the other place to have a free vote on this sort of issue, whether or not the Government support it?

Photo of Baroness Walmsley Baroness Walmsley Shadow Minister, Home Affairs

Before the Minister sits down, the purpose of this amendment is to create clarity and certainty. She said that one of her problems with it is that it would create confusion among parents. Does she feel that the general public do not understand the law of assault when the offence is adult on adult or that they do not know what they can and cannot do? This amendment is merely trying to remove excuses for unreasonable physical abuse of children and to return the law of assault when the offence is adult on child to exactly the same situation as that for adult on adult. That is all that we are trying to do.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

The noble Baroness has said that adults understand what the law is. I am not sure that if you asked 100 parents in the street tomorrow what they know about the law of reasonable chastisement, they would even have heard of it. I have read all the polling evidence. I live in a household where polling evidence is literally bread and butter. It often depends on the question that one asks. If one asks anyone with a good, reasonable mind face to face, "would you remove the defence that makes children unequal before the law", it would be interesting to see who would say "no".

The question is not where the noble Baroness is trying to go. I understand absolutely what she is saying, but that is not the effect that the amendment would have. We must work in a world where there is certainty. It is not good enough to say that it will not happen. When we take legal advice, and when I read what the Director of Public Prosecutions and others have said, I see before me a situation that is at best ambiguous, and it needs to be thought through carefully.

This is not about the Government saying that there is not more that we can do or that if we can find a way through that gives us clarity, we would not seek to do that. We are saying that unless we are able to do that, we could not move forward.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

I thank the Minister personally for having gone to so much trouble to explore the background to this amendment, and I thank noble Lords who have spoken to support the amendment. While I do not agree with the criticisms that have come from other noble Lords, I wish to listen to them carefully and read carefully what they have said. I am concerned that using the term, "ban on smacking", is an emotive sound bite behind which people can hide, do hide, and will continue to hide. When we look at the evidence, we know how the slippery slope starts, and hitting escalates into serious harm. We know from evidence that the outcomes of corporal punishment do not show positive benefits for society. Some have grown up well despite, not because of, their experience of corporal punishment.

I pay tribute to the Government for the enormous amount of work that they are doing to try to provide positive education in parenting. I am well aware of the expenditure undertaken by the National Assembly for Wales and the excellent booklets that have been produced in Wales. I have been reassured that such booklets are also being produced in England, but not living in England my experience is of the Welsh leaflets. They are excellent, but there is a sense among those working with children that the current law undermines the vast efforts that are being made to encourage people to parent positively in a society where there is increased family break up; there is increased infidelity among parents; and there is increased mobility and social isolation.

This amendment was seeking to establish equal protection—simply that—and safe equality for children. I will quickly address the criticism about the nanny state. I had understood that Article 8 of the European Convention on Human Rights, the right to a private family life, can be justifiably infringed only in the legitimate public interest. That would include the necessary protection of the young and the vulnerable. Currently, our law says that small children and babies can be hit lawfully by a parent if that parent believes that it is chastisement. That is before language and other reasoning skills are developed.

I do not believe that prosecutions would have been increased, nor was this the purpose. I welcome the invitation of the Minister, as I am sure other noble Lords do, to meet with her afterwards and talk with her. I am sure that we all have the aim that children should be protected under the law from being victims of escalating violence. We want to give society a clear message that violence is not an appropriate response to the normal feelings of frustration that every parent experiences. In the light of the very generous offer made by the Minster, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee begin again not before fifteen minutes before three.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.