Baroness Bennett of Manor Castle:

Moved by Baroness Bennett of Manor Castle

82: After Clause 72, insert the following new Clause—“Repeal of defence of reasonable punishment(1) Section 58 of the Children Act 2004 is repealed.(2) In relation to any offence, battery of a child cannot be justified on the ground that it constituted reasonable punishment.”

My Lords, as we approached the start of Report, I looked at the progress made in the Government adopting a significant numbers of amendments proposed in Committee and at the sensible amendments achieving broad cross-party support on Report, some of which I hope we will see adopted, and there was cause for some satisfaction. There was a feeling that this Bill, pushed along by a huge amount of hard work by campaigners outside your Lordships’ House who have provided us with extensive briefings and support showing the level of society’s concern about the failure to protect victims of domestic abuse, truly can protect people in their own homes. This is a humanitarian Bill about preventing physical and mental suffering, damage to health and well-being, and even death.

But as the deadline for amendments approached, it struck me that there was one remaining gaping hole in protections for children. There is the Amendment tabled by the noble Baroness, Lady Stroud, on in utero protection, but until now we have not even debated broad protection for children in the domestic setting, despite this being the major, long-awaited and much-debated Bill specifically covering that area of life.

In retrospect, that is extremely surprising, particularly when we look at what is happening elsewhere on these islands. Last November, in Scotland, a law giving children the same protection from assault as adults enjoy, in domestic and all settings, came into force. In Wales, the same protection will come into force in 2022. In Northern Ireland, it is under serious consideration. And of course the UN Convention on the Rights of the Child, which the UK adopted in 1990, requires the abolition of corporal punishment in all settings.

There are now also 58 other nations around the globe that have brought in what is generally known as a smacking ban, Sweden having been the first state to do so, way back in 1979. I am not generally, however, going to use the term “smacking ban”, because, although it is helpful for public understanding, having wide currency, it to some degree trivialises the protection from assault that I am talking about.

Let us make no mistake: children in England can now be assaulted in ways that, were one adult to do to another, would be considered absolutely unacceptable by the law and the public. Imagine being on a bus and seeing one person lean over and slap another across the legs with clear intention to shock and cause pain; you would be on your mobile phone to the police in a second. At night, down the pub—if you can still imagine such a thing—the same behaviour would see the bouncers approaching in full force to restore order. Yet we still explicitly in law allow such behaviour towards children, the most absolutely vulnerable individuals in our society.

In the school playground, should one child behave towards another as their parent may have done the previous evening towards them, officialdom would rightly swoop down, and, should it be a pattern of behaviour, there is a real chance that that child might receive the extreme penalty of exclusion from school.

Amendment 82, which I am presenting, is simple. I apologise for my oversight in not providing an explanatory note, but I think the meaning is clear: it abolishes the defence of “reasonable punishment” that currently exists under Section 58 of the Children Act 2004, and it says that

“battery of a child cannot be justified”.

I know well that this debate is not new to many in your Lordships’ House. A quick internet search demonstrated just how hard many participating in the debate today worked back in 2004 to try to bring protection from assault to children. That led to restrictions on corporal punishment by a parent, so a parent can still be charged with common assault if a physical punishment causes bruises, grazes, scratches, swellings or cuts. However, a defence of “reasonable punishment” is still available in the law, even when there is physical evidence of severe punishment. It is pretty well impossible to prove that punishment is unreasonable. It is a test of intent, and we are talking about events that generally happen behind closed doors. That was a degree of progress in 2004, but not nearly enough, and it is certainly not enough for 2021.

Among the people who worked enormously hard back in 2004 were the noble Baronesses, Lady Walmsley, Lady Whitaker and Lady Finlay, who have kindly signed this amendment—bringing broad cross-party and non-party support to it—and who will be speaking shortly. I know that a number of others would have signed the amendment, had there been space. I thank all of them for their support and their experience.

They are reflecting the view of a large number of campaigners and experts. Many noble Lords will have received a briefing from the Association of Educational Psychologists that contains a very long and distinguished list of organisations, from campaigning to medical professionals, that support such a move as this. I particularly thank the Social Workers Union, which has published an article doing that just today. That the AEP has been leading recent campaigning in England on the issue is not surprising when you see the evidence that it has assembled. It reports how the physical punishment of children causes anxiety and depression, damages self-esteem and models aggressive behaviour, which is often copied. The evidence also shows that it damages the quality of parent-child relationships.

I suggest that we also have to consider the context of the Covid-19 pandemic, which affects everything today. Children have had a hugely difficult time: for a five or 10 year-old, it is a major chunk of their life—a dominant experience that will certainly continue to have impacts on them. They need our protection and support.

Before I bring this Intervention to a close, I have one final point to make. I have no doubt that some will suggest that this amendment would run the risk of unreasonably penalising struggling parents trying to do their best in extremely difficult circumstances, with the lockdown, poverty, inequality and all the other stresses of life today. But this is very much the opposite—a necessary message from a society that, surveys show, already understands that physical attacks on children are not a good thing.

We need to support parents to use positive parenting strategies to better understand and anticipate their children’s behaviour and be more confident about how to set boundaries and support their children in developing self-regulation—and to control their own behaviour. Force escalation is a key issue in protecting children from assault. Research shows that when force is used, there are changes in brain activity that can lead to an escalation in the degree of force used. The AEP notes that, in a survey of parents, two in five admitted to going further than they had intended.

However, as important as it is to support parents, on its own it is not sufficient. We need to understand that parents who have been subjected to assault themselves as children, who have often had little or no education in methods of managing child behaviour, and who all too often are under enormous pressure need support.

When smacking bans have been brought in in those 58 other countries that already have them, there has not been a rush to litigation or a flood of parents locked up in jails. Back in 1999, research for the Children’s Society spoke to the experts themselves, the children. A seven year-old said:

“I was just thinking that if they changed the law then a lot of people will realise what they had done to their child and they would probably … be happy that the law was changed. If they don’t change the law they will think ‘oh well, the child doesn’t mind so we can keep on doing it’.”

That voice of a seven year-old is an excellent place to finish my argument.

I will not push this amendment to a vote. My extremely experienced and knowledgeable collection of supporters from your Lordships’ House persuaded me, somewhat against my natural inclinations, that that would not be the right thing to do at this time. Of course, that does not prevent the Government deciding to incorporate it into the Bill as its progress continues. I ask the Minister to consider that carefully. I am not expecting sudden action today, but certainly in future.

I have a further ask of the Minister: will she agree to meet campaigners, fellow Peers and me to examine the evidence and discuss ways forward or, if it is more appropriate, to approach the relevant Minister on our behalf to arrange such a meeting? In the meantime, I beg to move.

I now call the noble Baroness, Lady Whitaker. Is she there? No. Let us go on to the noble Baroness, Lady Walmsley. Lady Walmsley, we cannot hear you.

My Lords, I am sorry; I had not realised I had been called and did not hear the Deputy Speaker.

I am most grateful to the noble Baroness, Lady Bennett, for seeing the opportunity to bring this really important issue before your Lordships again. As she said, now is a very good time to return to a subject I first raised in your Lordships’ House 20 years ago, soon after I was introduced as a Peer. The time was right then, and it was also right when a group of us tried unsuccessfully to completely remove the reasonable punishment defence during the passage of the Children Act 2004. It is even more right now, as violence against children has increased during the Covid-19 pandemic. Any time is a good time to stop violence against children.

The fact is that if this country cannot give its children equal protection under the Laws of assault, such as their parents enjoy, it cannot say that it values its children and protects their rights. The committee on the UN Convention on the Rights of the Child agrees and has been very critical of the UK. Public opinion also agrees: 20 years ago, 80% of the public thought it should be illegal for anyone to hit a child. Indeed, many thought it already was. I suspect it is even higher now. Most people think violence against a child is a particularly egregious act, especially when it happens in a child’s own home, from which she cannot escape, and is done by someone she should be able to trust to protect her.

Of course parents have a right to bring up their children to behave well, but there are many more effective ways of demonstrating right and wrong. In the 58 countries where the law bans parental violence against children, parents have been helped to learn better ways of carrying out their duty to discipline their child. It is often called “positive parenting”. Violence against a child is definitely negative parenting, and most young parents today agree and would not dream of hitting their child.

As the noble Baroness, Lady Bennett, has said, children learn by example. Parents who beat their child cannot be surprised if the child copies that behaviour and hits other children in the playground and, because violence begets violence, they may also grow up to beat their own children. Violence is also detrimental to the development of the child and should be regarded as an adverse childhood event—an ACE—deserving of Intervention.

Recent research supports a ban on hitting children. A large long-term longitudinal study by Ma, Lee and Grogan-Kaylor, published in the Journal of Pediatrics in February, of a range of adverse child experiences with particular focus on violence against children, reached the following conclusion:

“ACEs and spanking have similar associations in predicting child externalizing behavior. Results support calls to consider physical punishment as a form of ACE. Our findings also underscore the importance of assessing exposure to ACEs and physical punishment among young children and providing appropriate intervention to children at risk.”

In other words, they found that hitting children does not stop them misbehaving; indeed it can make it worse and has an adverse effect on their development, so services with a duty to protect the child should intervene to stop it. That starts with the law of the land. In the UK, we have already acknowledged that a child who watches violence against its mother in the home is at risk of mental and emotional trauma. How much more trauma will a child suffer who is treated to the same violence himself or herself?

We all want to help parents with the hardest of tasks—bringing up a child healthy and happy—but the current law does not do that. It is discriminatory to children and unhelpful to parents. Hitting a child hard enough to cause a bruise is illegal, but some children do not bruise easily, so could be hit harder without the parents breaking the law. How does a parent know how hard they can hit a child before overstepping that limit? Of course, the answer is not to do it at all and find a better way that does not damage the child you love. The law is nonsense and must be changed.

People have realised this in other countries, including the other three in our own union. Scotland has banned and Wales is about to ban violence against children, and Northern Ireland is looking at it. It is instructive to look at how other countries did it; there is a common approach. When I was in New Zealand, I heard directly from the Minister there about how a lot of help was put in place for parents to learn better ways of disciplining children before removing the very damaging option that we are discussing today. Help with positive parenting and someone to turn to for advice—we need to do that too. It is not that difficult or expensive, but the benefits are enormous for families.

I have a final point. Sweden was the first country to ban parents from hitting children, over 40 years ago, yet Swedish prisons are not and were not full of caring parents who occasionally lost their temper and gave their child a trivial smack. By the way, most parents who do that regret it very much afterwards. Those who fear criminalising otherwise caring parents should remember that the CPS will charge someone with a criminal offence only if the situation meets two tests: first, there is a good chance of obtaining a conviction and, secondly, it is in the public interest. The situation I have just described would not fulfil those tests. However, the law on assault should be clear, helpful to parents and fair to children.

The Government need to show leadership here. When Sweden banned hitting children in 1979, there was not a Majority of public opinion in favour of the change, as there is here, but its Government went ahead and did the right thing anyway. Now, Sweden could not get away with legalising hitting children as, I am pleased to say, strong public opinion would prevent such a move. I beg the Government to show similar leadership and accept this Amendment, or do I have to spend another 20 years campaigning for it?

We are trying to get the noble Baroness, Lady Whitaker, but meanwhile I call the noble Baroness, Lady Hoey.

My Lords, I rise to speak against Amendment 82. I appreciate that the noble Baronesses who have tabled this amendment mean well, although their language is quite interesting because they have used the most extreme language. They talked about violence, battering and physical attacks. I do not see any need for a criminal ban on—I know the noble Baroness, Lady Bennett, did not want to use this word but I will say—smacking, or an end to the reasonable chastisement law.

It is important we remember that all the law currently allows for is a parent to, if they wish, use a very mild smack on the bottom or a tap on the back of the hand or leg. There is no evidence that this very moderate and limited defence has been misused to allow parents to get away with abusing their children. The idea that it leads to escalation—a parent using a very mild smack today will beat their child black and blue tomorrow—is such an insult to millions of normal, decent parents who would never dream of doing any such thing. You might as well say that shouting at your child should be banned, because that too can sometimes escalate.

It is a ridiculous and offensive notion and frankly, for me, some of the alternatives that this “good parenting” brings in which families could use to chastise seem much worse. If I was a child, my choice would be to have the quick smack and be outside playing again rather than being locked up in my room for three or four hours on my own with nothing or nobody to speak to. We have no idea what the psychological effects of that are on young children.

The noble Baroness, Lady Walmsley, talked about public support. We do not have that public support. We know there are no popular calls for a ban. It may be an issue which obsesses certain activists and people, but the idea that the public are clamouring for us to criminalise parents who smack is far from the truth. Polling in Scotland and Wales ahead of the smacking bans there demonstrates how unwanted and unwelcome these new regimes are: 76% of Welsh adults said no to changing the law in 2017 and 74% of Scottish adults opposed a smacking ban. I have not seen much discussion of it in Northern Ireland. Let us not pretend the Great British public have given a mandate to change the law. In my view and in most parents’ views, smacking is a reasonable option that responsible parents must be free to use if they see fit.

Journalists, campaigners and some of the noble Lords who have spoken are prone to claiming that “this study says this” or “that research says that” or “that psychologist says this” and it deserves to be criminalised. But if you actually look at the data, you usually find either that the researchers are active campaigners dressing their views up as science or that the research did not make the claims attributed to it. I am not aware of any reliable studies showing causation between gentle physical chastisement of the kind we are talking about and negative child outcomes. By removing the reasonable chastisement protection, tapping your child on the hand or the bottom would become a crime—an assault, as some of the noble Baronesses call it.

If this happens, the police and others would have a duty to report and investigate every case that came to their attention. Every instance of a loving mum or dad using a little smack in a reasonable and normal manner, perhaps when the child was in imminent danger, would suddenly be liable for prosecution. That cannot be anything but detrimental to that family’s trust in the authorities. Removing the safeguard would likely result in significant overreporting to social services. The twitching curtain brigade would love it.

There are probably thousands of parents using reasonable chastisement every day, and the idea that they would all stop overnight because we tell them to is, I am afraid, pretty naive. Even if only a fraction of those parents came to the attention of the authorities, it would place considerable pressure on the already overburdened social services and police, and this would dilute the resources available to help truly vulnerable children and their families. Some of them would eventually slip through the cracks and be overlooked. I believe that this would be the legacy of passing this amendment.

In all honesty, I fail to see how removing the reasonable chastisement defence helps families at all. It would increase the pressure on reasonable parents and dissolve their trust, and it would increase the pressure on our vital services and those most at risk. Finally, it would hinder the cohesion of some of the United Kingdom’s communities. Our nation has a wide diversity of communities; however, marginalised communities may be especially caught by the ban, because it would be likely to affect some more than others. If social services, the police and others are seen as interfering, that would only increase distrust and Division.

I look around your Lordships’ House tonight—well, I do not see too many people, but I can see them on Zoom—and I wonder how many of its Members could honestly say that they were never smacked as a child.

Very seriously, I believe that this amendment would genuinely risk real child abuse being seen differently. If the public think and are told that smacking in the way that I have described is child abuse, I believe that the bar is lowered so much that the way other really serious child abuse is seen could be seriously damaged.

Families are the backbone of our society and they deserve all the support we can give them. The reasonable chastisement defence is, by definition, a reasonable law. I know that this amendment is not being put to the vote tonight. I actually wish it was; I am pretty convinced that noble Lords would vote against it, because the public know that this is not the right way to go, and it certainly should not be attached to a Domestic Abuse Bill.

My Lords, I thank the noble Baroness, Lady Bennett, for introducing this important Amendment to the Bill, just as I did 16 years ago when the Children Act was making its way through this House. The aim has not changed: to allow children the same legal protection from violence that adults enjoy today—no more, no less.

While the aim has not changed, the times and society certainly have. In the 1990s, parents interviewed in confidence as part of a research study commissioned by the Department of Health 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. Over 91% 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% had been punished severely, which is defined as with the intention or potential to actually cause harm to the child. That included actions that were repeated, prolonged or involved the use of implements. Today, those children are parents.

In 2021, we find ourselves a year after national lockdowns began. The pressure on parents has been enormous, and we know that if a parent hits a child, it is usually in response to pent-up feelings. When parents have been forced to be indoors 24 hours a day, trying to work and look after their children at the same time, many parents have struggled to hide their frustration at one time or another.

The circumstances of the pandemic have only emphasised the need for many of the amendments that have been accepted by the Government already. The Government have done a great deal to ensure the safeguarding of children, but the state of the law on this undermines it.

A recent paper in the Archives of Disease in Childhood showed that in one hospital in 2020 in just one month, the number of cases of serious child injury rose by almost 1,500% compared with the same period in the previous three years, pointing to a silent pandemic of abuse in 2020. Ten children aged 17 days to 13 months had head trauma. This is just one of several such reports, confirmed by the 80% increase in NSPCC referrals.

Research clearly shows that corporal punishment has all kind of negative effects on mental health, parent-child relationships, increased anti-social behaviour and child aggression. Almost all abuse takes place in the context of so-called punishment or discipline. Sweden’s experience of banning smacking has shown that it benefits children and society as a whole, and 60 countries have now followed suit.

I will address the concerns of the noble Baroness, Lady Hoey. Loving, caring parents need to use physical actions at times, especially with young children: to protect them, to grab them and lift them, to restrain them and so on. The amendment would not interfere with this part of day-to-day parenting, or with the ability to punish in non-violent ways. But smacking can escalate to beating the living daylights out of a child. That is what the amendment seeks to address.

Most parents report that they regret having hit, but it escalates so easily into more serious violence. Children who are pinched, slapped, shaken and spanked are 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. Aggression breeds aggression. Children must learn de-escalation and parents must set the example.

In 2022, a law banning the smacking of children in Wales will come into force, thanks to Julie Morgan’s leadership on the issue. Scotland passed such legislation in October 2019, and several people have seen at first hand how counting to 10 rather than a frequent quick slap has resulted in better child behaviour. Now England should follow. The amendment will not stem the tide of domestic abuse, but it will give the next generation the same protection in law from serious abuse that we aim to afford to adults. That is why I support it.

My Lords, this Amendment attempts to repeal the defence of reasonable punishment as part of the Children Act. In my mind, that would effectively criminalise parents for reasonably chastising their own children.

In doing so, the amendment raises a number of ethical pitfalls that the state faces whenever it legislates to police private family life in a free society. Historically, we have recognised that state interventions into family life should be rare, proportionate and handled with due respect for parental autonomy. In recent years, we have sadly seen an unfortunate trend towards top-down overreach, and this amendment is a good illustration. In the whole of the Domestic Abuse Bill, with its focus on helping those abused in domestic settings or contexts, we still need to remember that this is not a green light to tear up all the norms of privacy and liberty when it comes to family life.

Essentially, the amendment would remove the legal defence of reasonable chastisement from parents who might occasionally smack their own children. Effectively, this declares that the Government know better than loving parents, who could find themselves vulnerable to charges of common assault just for being parents

Of course, there will be people here who might not approve of slapping. We have already heard from some. But that is their business. That is no justification for overruling other parents’ decisions, or their values. Should we assume that the state always knows best when it comes to child rearing? I am sure that those raised in care homes might have a different view.

The amendment is also entirely unnecessary, because it is already illegal to aim a smack at a child’s head or to hit a child with an object, as is any smack that leads to more than the temporary reddening of skin. In other words, unreasonable punishment is already against the law, and rightly so. The vast Majority of society view violence aimed at children as abhorrent. They think that beating children should be not just illegal but morally condemned, as we all do. So what would this amendment outlawing even a reasonable use of smacking achieve?

The amendment states that

“battery of a child cannot be justified on the ground that it constituted reasonable punishment.”

Of course battery cannot be justified on the basis of reasonable punishment—but think about the use of that word, “battery”. It conjures up horrors, does it not? Why was that word used in this amendment? I noticed that, in campaigns to ban smacking in Wales and Scotland, one of the most egregious tactics of anti-smacking lobbyists was this irresponsible conflation of smacking with gross acts of violence. This rhetorical trick is shameless and shamefully distorts intention and context.

It is important to state for the record that violence is physical force intended to injure. In contrast, if a mum or dad smacks a five year-old child for being naughty, they have no intention of causing injury. Rather, they, like all of us, want to teach their child right from wrong, for example by chastising them for running in front of a car. This is driven by parental love, not a desire to injure. Conflating slapping with violence paints ordinary mums and dads as potential violent thugs or child abusers. It is just so insulting. It also shows a certain distrust of ordinary parents; tonight, we heard people describing smacking and beating the living daylights out of children in the same sentence.

For the noble Baroness, Lady Bennett, who argued that we should treat the smacking of a child as we would treat a bodily attack on a grown adult, again, let us think about context. Do we really believe that children should not be treated differently from adults? In the real world, parents do many things to their children that they would not dream of doing to another adult. When you order a child to bed, you do not order adults to bed, do you? You check whether your child’s bottom is clean; you would not do that to an adult. We treat children—especially our own—differently from adults. If you confiscate your teen’s Xbox or phone, we do not consider that theft because of the context. It is common-sense disciplinary action, as smacking can be. Smacking is not assault; it is not even comparable. So I hope that noble Lords agree that parents are better placed to judge when and how to discipline their offspring than any number of NGOs—even if they come waving state-approved parenting manuals full of best practice checklists and “Count to 10”.

Finally, the danger with overreach is that it expands who and what is criminalised. As I have warned several times during the passage of this Bill, and as the noble Baroness, Lady Hoey, pointed out, this could open the floodgates to complaints of minor incidents and overwhelm the police and social services, which are already overstretched. When I argued this in Wales in relation to the debate there, I was assured that the legislation was not about criminalising parents, but about sending a message. However, politicians cannot change the criminal law and expect the police and courts not to enforce it. It is not a communications strategy. Also, the Scottish Government encouraged the public to phone 999 if they witnessed a parent smacking their child; they also distributed leaflets aimed at children, urging them to report on their parents. Can you imagine how divisive, demoralising and damaging that is for family life? How does it protect children if the law undermines parental authority, or if families are ripped apart by damaging police investigations because a child was smacked? It would discredit the whole concept of domestic abuse, as well as child abuse, if we treated smacking as assault under this Bill. We ourselves would launch an assault on family coherence.

Finally, for many weeks now, we, in following this Domestic Abuse Bill, have focused on the dark side of family life. Earlier this evening, we heard harrowing tales of stalking, abuse, women at risk and so on. However, we must make sure that this does not poison our world view. We should avoid starting to see abuse everywhere. Behind closed doors is not a dystopian hellhole. The majority of families are joyous places of solidarity and socialising children. Sometimes they are messy. Sometimes they are argumentative. Sometimes there is a bit of shouting. Sometimes there is the odd smack. However, they are largely full of love. This amendment suggests otherwise and should be rejected.

My Lords, I thank the noble Baroness, Lady Bennett of Manor Castle, for tabling the Amendment, which I support on three grounds.

First, and perhaps most important, I support it on the grounds of children’s rights. Article 19 of the UN Convention on the Rights of the Child says that Governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents and anyone else who looks after them. Yet successive Governments have failed to implement the recommendation of the UN Committee on the Rights of the Child, that they should prohibit, as a matter of priority, all corporal punishment in the family, including the repeal of all legal defences. In the past, the Joint Committee on Human Rights concluded that the defence of reasonable punishment was incompatible with children’s rights under various human rights treaties and recommended that it be replaced with a provision drafted to remove that defence and give children the same protection from battery as adults.

Secondly, as we have already heard, despite the assertions of the noble Baroness, Lady Hoey, there is a growing body of evidence that indicates that smacking—or whatever you want to call it—can have an adverse, long-term impact on children’s mental health and behaviour, as well as a negative impact on parent-child relationships, rather souring the happy, halcyon image of the family that the noble Baroness, Lady Fox, just painted. Back in 2015, four UK Children’s Commissioners called for the immediate prohibition of corporal punishment in the family. That was over five years ago.

Thirdly, is the example set not just by most other European and OECD countries but, as we have heard, by our own devolved nations of Scotland and Wales. It is no coincidence that, unlike the Westminster Government, these devolved nations treat the UN convention as a guiding light in their policy-making on children. If children in Scotland and Wales are no longer to be at risk of smacking on the grounds it constitutes reasonable punishment, what possible justification is there for children in England to continue to be at risk? I am afraid I do not take the arguments put by the noble Baroness, Lady Fox, as providing any such convincing justification.

No doubt the Minister will argue that this Bill is not the place for such an amendment, as did the noble Baronesses, Lady Fox and Lady Hoey. That may be so, though the fact that we are debating it today means it is in the scope. But I welcome the opportunity it has given us to debate the issues it raises, and I hope the Minister will take back to the Department for Education the messages raised by the Majority of those contributing to the debate and seek the meeting called for by the noble Baroness, Lady Bennett.

There is a wider message gaining growing support in civil society: we need a Cabinet-level Minister with special responsibility for children and their needs, concerns and rights or, at the very least, the restoration of such a post at Minister of State level. I hope that child-friendly developments in England and Wales will lead to change in England too, including the repeal of the defence of reasonable punishment.

My Lords, I am afraid that I cannot support Amendment 82. I very strongly support the comments of the noble Baronesses, Lady Hoey and Lady Fox. The defence of reasonable chastisement was created to stop parents being prosecuted for assault when they did not deserve to be prosecuted. If a parent hits a child in a way that causes any kind of mark—the CPS would say anything more than a transient reddening of the skin—then they have used unreasonable chastisement and can quite properly be prosecuted. The reasonable chastisement defence helps to ensure that good parents do not find themselves accused of being a child abuser for doing something perfectly gentle and humane. This defence therefore exists, first, to keep children safe and, secondly, to protect loving, decent parents. The current law does not need amending; it achieves the right balance. Who, after all, wants to criminalise reasonable behaviour?

Friends of ours had a child taken from their family by overenthusiastic social workers, quite wrongly, which caused enormous distress. It was because of an unexplainable bruise. I expect that most of us experienced reasonable chastisement when we were children. In 2017, a ComRes poll found that this was the experience of 85% of adults. If reasonable chastisement was so harmful that it deserved to be criminalised, you would expect eight out of 10 adults to manifest the same symptoms as children who have been abused. But of course they do not. How many of us whose parents loved us, cared for us and taught us right from wrong think our childhoods would have been better if our parents had been prosecuted merely for giving us a well-deserved smack on the bottom? That is what this amendment would mean for families today.

Parents know their own children. They are best placed to judge whether a tap on the hand of a toddler who has resisted all other blandishments is the right call. I would strongly challenge the assumption that every parent who smacks their child should be described as hitting and violent. None of us approves of such actions. Parents have a huge range of tactics and strategies at their disposal to help their children grow up into kind, diligent adults: gentle instruction, words of praise, the naughty step and withdrawing privileges. But for many parents, reasonable chastisement sometimes fits the bill. Who are we to make criminals of those whose parenting philosophy differs from our own on this point?

For every person who claims that such common-sense parenting is damaging, we have thousands of sensible parents living in the real world who are convinced otherwise. Opinion poll after opinion poll shows that three-quarters of the public do not want to expose parents who use reasonable chastisement to the full force of the criminal law. This amendment is neither necessary nor wanted by the public. We should not use the criminal law to enforce political fashions and condemn the mums and dads of today for making the same decisions that many of us have made. We must let parents decide for themselves. Common sense should not result in a criminal record, and that is not an alarmist statement.

Last year, as we have been told already, Scotland passed a law banning smacking, while telling critics again and again that removing the reasonable chastisement defence would not result in parents being criminalised. Yet less than a month before the ban came into effect, the Scottish Government published advice telling members of the public to dial 999 to report a crime in progress if they saw a parent smacking their child. We are only months into the implementation of that law in Scotland, so we must wait and see what happens once the authorities begin to enforce it in earnest. So far, there is a lack of evidence that criminalising parents has reduced domestic abuse in countries that have introduced so-called smacking bans.

Instead of attacking good parents we should be reassuring them of our support, especially after the challenging year that families have experienced. There would be a real danger in including this amendment in the Domestic Abuse Bill. Loving parents are not domestic abusers and it is insulting to suggest otherwise. A gentle tap on the hand to discourage a persistent two year-old from putting their finger in every plug socket they encounter is not child abuse but responsible parenting. Abusive parents are already caught by the law, but this amendment would task police and social services with targeting not abusive but loving parents. It would be a serious mistake.

My Lords, we shall now hear from the noble Baroness, Lady Whitaker.

My Lords, I am very pleased to add my name to this Amendment, so ably moved by the noble Baroness, Lady Bennett of Manor Castle. It is high time that the rights of children in respect of assault were given proper recognition. Of course, such assaults—otherwise termed corporal punishment—were not always regarded as wrong, and I can see that some people still do not regard them as wrong, but norms change, thankfully. Some newly accepted norms we think important enough to put into law, so that we can affirm them as a society. This particularly applies to instances of violence, which we have heard a lot about in this debate. Duelling was acceptable until it was made illegal, and indeed corporal punishment in schools was common until it was legally banned, as it was eventually—though shamefully late—in institutions for children with learning disabilities. Smacking within the family was accepted until the last Labour Government took the small step of banning it, but only if it left a mark—an odd concept in these days of valuing diversity of colour, as my noble friend Lady Howells, now retired, pointed out.

Of course, conduct does not always follow the law, which is why enforcement is a necessary corollary, but in this case the law lags behind popular opinion. When I last looked at the subject, the Majority were in favour of making smacking illegal. Libertarians might argue that if the norm is changing, why have a law? Indeed, we have heard some even more extreme arguments this evening. I think the contemporary answer is that in a diverse society, if generally agreed changes in conduct are not given a push, traditional forms of behaviour, rather than the fast becoming socially accepted standard, will still prevail and harm children. Now, more than ever, we need Laws that unite us and affirm the important values of dignity and respect for others, especially if they are weaker, smaller or more vulnerable. It is time for assault on children to be banned everywhere.

My Lords, what a very interesting debate this has been; I did not expect this. I am grateful to the noble Baroness, Lady Bennett, for tabling the Amendment. I also commend the work of my noble friend Lady Walmsley, who first raised this issue 20 years ago. The statistics I have show that 20 years ago some 80% of the public thought hitting a child should be illegal. What has happened in the intervening years to warrant parents’ outrage—as described by the noble Baroness, Lady Hoey—at the prospect of not being able to smack their children, I am not entirely sure. As I have been involved in this subject before, I was surprised to learn that the corporal punishment of children is not illegal already. It contravenes the UN Convention on the Rights of the Child, as the noble Baroness, Lady Lister of Burtersett, reminded us.

Turning to the reasoning for amending this Bill now, we know that violence begets violence, as described so eloquently by the noble Baroness, Lady Finlay. As she said, there is a pandemic of violence in this country and the vast brunt of domestic abuse falls on women, having been perpetrated by men. It has been a distressing experience for me to have to go through all the ways and circumstances in which this happens, but those who perpetrate violence always pick a victim weaker than they are. Some men do it to women, but some men and women do it to children.

The noble Lord, Lord Curry, gave us a case study of a child who had been taken away from their parents because of an unexplained bruise, implying that safeguarding should not be properly investigating things such as bruising of children. In my view, better safe than battered.

I do not need to rehearse the arguments about how a culture of violence is passed from generation to generation or how we will never stop this happening until it is nipped in the bud. A child who has not had violence perpetrated on them is far less likely to become a perpetrator themselves.

My noble friend Lady Walmsley makes the important point that in this country we do not afford our children the same protections as their parents. The Bill includes children within the definition of a victim. How can it be illegal to hit the mother or the father but legal to hit the child? Under the law as it stands, it is not illegal to hit a child unless you raise a bruise. That is all right then—you can commit any of the other actions of domestic abuse described under Clause 1(3) and hit a child hard, but not so hard that others can witness the outcome of what you have done.

The only way to stop this pandemic of abuse is to stop transmission from one generation to the next and train perpetrators to handle differently situations where violence is likely to occur.

Many other excellent points have been made by other noble Lords. There is no need for me to detain the House by repeating them. They are doing it in Scotland; they are doing it in Wales; why can we not do it in England? The noble Baroness, Lady Fox, says that if we did so, we would open the floodgates to trivial complaints. This has been refuted in this debate; the noble Baroness, Lady Whitaker, summed this up by saying that norms change. I hope the noble Baronesses, Lady Fox and Lady Hoey, are swimming against the tide. I and my party strongly support this amendment.

I agree with the noble Baroness, Lady Burt of Solihull, that this has been a very interesting debate, but I do not intend to detain the House long.

Amendment 82, moved by the noble Baroness, Lady Bennett of Manor Castle, would repeal Section 58 of the Children Act 2004 and provide in this Bill that:

“In relation to any offence, battery of a child cannot be justified on the ground that it constituted reasonable punishment.”

The 2004 Act set out safeguards on the physical punishment of children. It provides that battery of a child, which covers the smacking of a child, could not constitute reasonable punishment if it was related to certain offences, I think such as grievous or actual bodily harm, cruelty or wounding. This amendment would widen that to all situations and circumstances.

I note that the noble Baroness, Lady Bennett of Manor Castle, has said that she will not push for a vote on her amendment, which seeks a significant change to existing law under the Children Act 2004. I can understand why she has made that decision. When the Children Act 2004 was going through Parliament, the debates on its terms were lengthy and included the issue of whether smacking should be permitted as a reasonable punishment in any circumstances under that Act.

The kind of significant change to existing law being sought in this amendment on children should be the subject of consultation and consideration, providing a proper opportunity for the case and supporting evidence, both for and against such a proposition, to be fully debated, tested and aired prior to a decision being made on whether to agree to change the existing law. That level of scrutiny cannot be achieved through this amendment on Report stage of this Bill and, for that reason, we believe that the noble Baroness, Lady Bennett of Manor Castle, while certainly raising an important issue on what is or is not acceptable in the treatment of children, is right in her decision not to push this to a vote.

The noble Baroness, Lady Bennett of Manor Castle, is also justified in drawing attention to developments on this issue in Scotland and Wales that are in line with her amendment, and seeking an undertaking from the Government to listen to and examine the evidence for change, and consider whether the current legal position as set out in the 2004 Act should be amended. I wait to see if the Government, in their response, will indicate a willingness to do this in light of the points that the noble Baroness, Lady Bennett of Manor Castle, made in moving her amendment.

My Lords, as the noble Baroness, Lady Bennett of Manor Castle, has explained, her Amendment 82 seeks to repeal Section 58 of the Children Act 2004 and to replace it with a provision that removes the defence of reasonable punishment from parents, or persons acting legally as parents, to charges of battery against a child in relation to any offence.

I make it clear at the outset that the Government absolutely condemn abuse and violence towards children. Accordingly, Clause 3 was added to the Bill in Another place to recognise that a child is considered to be a victim of domestic abuse, including physical abuse, in his or her own right, if they see, hear or experience the effects of domestic abuse and are related to either the targeted victim of the abuser or the perpetrator. The Government are aware of recent legislation in Scotland and Wales that removes the defence of reasonable punishment. While parents are responsible for disciplining their children, they must do so within the boundaries of clear Laws against violence towards children in England.

Section 58 of the Children Act 2004 changed the law significantly to give children greater protection. The defence of reasonable punishment can no longer be used when parents or those acting in place of parents are charged with assault causing actual or grievous bodily harm or child cruelty. The law in England provides that parents and other adults who are acting legally in place of the parents may plead a defence of reasonable punishment to a charge of common assault against a child. Common assault amounts to where an injury is “transient and trifling”.

Following the 2004 Act, the Crown Prosecution Service amended its guidance so that it acknowledges the particular vulnerability of children. An injury that would lead to a charge of common assault where the victim was an adult would normally be charged as actual bodily harm or a more serious offence if the victim were a child. Parents who cause injuries to children such as grazes, scratches, abrasions, bruising, swelling and superficial cuts are already at risk of being charged with actual bodily harm and would have no defence of reasonable punishment. Child protection agencies and the police treat allegations of abuse very seriously; they will investigate and take appropriate action, including prosecution, where there is sufficient evidence of an offence having been committed.

Statutory guidance, Working Together to Safeguard Children, sets out what professionals and organisations need to do to safeguard and promote the welfare of children and young people. Further statutory guidance entitled Keeping Children Safe in Education also sets out what staff in schools and colleges should do to safeguard children and young people.

Relationships, sex and health education is now a statutory part of the curriculum. The focus on healthy relationships in primary and secondary schools will help children and young people who are experiencing or witnessing unhealthy relationships to know where to seek help and report abuse, as well as addressing inappropriate behaviour, harassment, abuse or exploitation. In short, there are already strong safeguards in existing legislation and statutory guidance that protect children from physical harm as a form of punishment. The current legal position is clear, appropriate and protects children from abuse and harm. The Government do not accept that the law, as it stands, is in breach of the United Nations Convention on the Rights of the Child; we believe that it complies with Articles 19 and 37 on abuse and violence towards children.

We accept that there are differing views on Section 58 of the Children Act, and we have heard them expressed again on both sides in what has been a lively and informative debate, including some very powerful speeches against the amendment from the noble Baronesses, Lady Hoey and Lady Fox of Buckley, and my fellow Northumbrian, the noble Lord, Lord Curry of Kirkharle. As the noble Baroness, Lady Bennett, noted, this has been a long-running issue. I am glad that she has listened to the counsel of her supporters and agreed not to press this issue to a vote this evening. She and I are equally new to your Lordships’ House as we were introduced around the same time, but I agree with those who have said that this is too an important an issue to be slipped into the Bill at this late stage. However, she rightly used the opportunity to ask some questions and seek a meeting. That is properly a matter for the Department for Education, but I shall pass a request for a meeting on and ensure that it replies to her directly about it. With that, and having sparked this lively and interesting debate, I hope that she will now be content to withdraw her amendment.

My Lords, I thank the Minister for his answer and everyone who has participated in this debate. I share the feeling of the noble Baroness, Lady Burt, about the need to draw a very deep breath before I begin. I think many people in British society would be surprised at the tone of some of the arguments presented this evening by those opposing this Amendment. I suspect the noble Baroness, Lady Walmsley, would feel that some parts of our political landscape have not changed very much in 20 years. However, that is perhaps because there is a feeling that that part of the political landscape is very much swimming against the tide of public opinion—I might even say the tide of history.

I thank the Minister for his offer to pass on a request to the department. I will be pursuing that very vigorously, and I very much hope that we will have a ministerial meeting. These are issues that need to be raised at the highest level, particularly given what is happening in the nations around us. I welcome the Minister’s comments about how much progress is being made in sex and relationship education, something I have long been campaigning on. It is something that needs to be monitored very closely to make sure that it is meeting the needs of our current society.

The noble Lord, Lord Russell, rightly identified the reasons why I was persuaded not to push this further at this moment. This was not on the list of amendments in Committee and it is not normal practice to go further at this stage, but it is obvious that the level of debate is going to be stepped up significantly.

I am aware of the hour, so I shall be brief, but it is worth drawing together the noble Baronesses, all of whom are veterans of this campaign. The noble Baroness, Lady Walmsley, made very important points about the context in which this debate is happening, which is the Covid pandemic, and about how we now understand so much more about adverse childhood experiences and their impact on children. That is a reflection of how far the science has moved on in the past two decades. Indeed, the noble Baroness, Lady Finlay, who has an expert’s perspective, acknowledged how the current law undermines the Government’s efforts in child welfare and other areas and gave an expert account of what is being seen in our hospitals and by our doctors.

The noble Baronesses, Lady Finlay and Lady Lister, focused on rights. We are talking about children’s rights to be protected from all forms of violence; that is the crucial issue here. In passing, I offer my support to the noble Baroness, Lady Lister, on the need for a Minister for children. We have seen an acknowledgement of the need for children’s commissioners, which has been hugely valuable, but we need to go a step further, closer to the centre of government.

The noble Baronesses, Lady Hoey and Lady Fox, took issue with the nature of the language that I used. A better response could perhaps be given by one of the noble and learned Members of your Lordships’ House, but from my lay legal knowledge I point out that “battery” is not a rhetorical device but the description of a common law offence under English law. When we talk about violence, we are talking about physical attacks and those are the words that we would use when referring to what happens between two adults. We are talking about exactly the same thing. In fact, we are talking about an interaction that we might see between a very large and heavy adult and a very light, small adult—the imbalance of power is much greater.

I also pick up on the comments of the noble Baroness, Lady Hoey, on public opinion in Wales. I am not sure which survey she was referring to, but the Public Attitudes to Physical Punishment of Children: Baseline Survey, 2018 found that 62% of parents and caregivers of children under seven disagreed with smacking. Only 5% of parents strongly agreed that it was necessary. Those are the modern parents to which other noble Baronesses were referring.

I take issue with the comments of the noble Lord, Lord Curry of Kirkharle. I paraphrase slightly but he more or less said, “It happened to 85% of adults in the past and we have turned out all right, haven’t we?” Reflecting, as the whole of our society has been doing, on the level of misogyny and violence against women and girls, I very strongly question that conclusion. I would add, as several noble Baronesses have said, that violence begets violence. We know that that is the factual truth.

To address the point made by the noble Baroness, Lady Hoey, that all the research was some kind of anthropological activist research, I point out that among the long list of organisations backing a ban on assaults on children, we have the Royal College of Paediatrics and Child Health, the Royal College of General Practitioners and the Professional Association for Childcare and Early Years. These are not activists or campaigners; they are the professionals who know and are gravely concerned about the well-being of the children in their care.

I am restraining myself, noticing the hour. I will leave this here for the moment, but we are past time in taking this action. It is happening all around us geographically, all around the world. I do not agree with the Minister’s conclusions about complying with the UN Convention on the Rights of the Child. I very much hope—indeed, I am confident—that the noble Baroness, Lady Walmsley, will not need to spend another 20 years campaigning on this issue. In the meantime, I beg leave to withdraw the amendment.

Amendment 82 withdrawn.

We now come to the group beginning with Amendment 83. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.