House of Commons Hansard Debates for 1 May 1995

Mr. Gallie: Looking back, I have to say that I certainly would not strike my children now as one is 25 and the other is 22; they are adults in their own right. In the past, as a parent, yes, I struck my children, although I never ever struck them in a way that would have marked them: had I done so, I believe that the law as it stands would certainly have allowed me to be taken to court and due justice to be exacted. I certainly did strike my children when they were younger, and I make no apologies for that. I do not believe that I at any time created undue pain or misery to my children by so doing. It was infrequent and I would like to think that any such punishment is more a deterrent than a controlling factor.

On that basis alone, I ask my hon. Friend the Minister to reject the comments coming from Opposition Members. Let us not make another mistake on such issues by listening to the siren vices of the Opposition; let us maintain the status quo.

Mrs. Ewing: I intend to speak briefly. I have listened with considerable interest to the points made by the hon. Member for Ayr (Mr. Gallie). Needless to say, I do not want to pursue many of the points that he raised, as the arguments that he deployed were similar to those advanced on issues such as the abolition of slavery, about slavery being good for the slaves, who would not be able to cope with freedom; or how it was good to keep pushing young boys up chimneys because it gave them employment.

As society develops, we have to look carefully at the parameters laid down by its legislature. I believe that the ideals enshrined in this very important new clause are admirable.

Mr. Gallie: The hon. Lady does me a great disservice when she compares the comments that I made with the days of slavery and pushing young children up chimneys. We are in a different situation. I have raised questions of detail on the new clause. If the hon. Lady wants to contribute, perhaps she could ease my mind on some of the questions that I have posed in relation to the confusion that would ensue if the new clause were adopted.

5.45 pm

Mrs. Ewing: The hon. Gentleman must accept the clear point that I made: the legislature has a responsibility to bring forward ideals into its society which reflect views

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and developments. The arguments that I used from history were put forward at that stage. Now, everyone regards them as ridiculous. In another century, people may look back on our debates-- students of history, perhaps at some of the wonderful universities in Scotland--and wonder why on earth anyone opposed the principles being propounded here.

Of course there will be difficulties in legal interpretation. Any law that is instituted is subject to legal interpretation; otherwise we would not have lawyers, a legal system, and courts, in all their many different aspects. I believe that it is important, therefore, that we give some guidance. The Scottish Law Commission is one of the most respected legal bodies, and far too many of its reports have gathered dust on shelves and in the libraries of Scotland. We have not seen many of its very sound and effective recommendations brought into effect. This is a small measure, but it is one for which the Law Commission has clearly indicated its support, after taking substantial evidence.

The provision is also supported by organisations which see the effect of such punishment on children. The Royal Scottish Society for the Prevention of Cruelty to Children has clearly endorsed the new clause. We all accept that we are not trying to abolish the right of a parent to punish a child, but we are expecting limits to be set. I do not speak as a parent. Unfortunately I am not a parent, although I would have liked to be, but I have very interesting nephews and have watched them growing up and developing. I also worked as a teacher and saw the results in my classroom of some of the so-called "punishments" meted out to the children with whom I had to work from Monday until Friday.

It is right that if a social worker, teacher, doctor, health visitor-- anyone who has a right to be in contact with the child--is concerned about the kind of chastisement being dealt out by a parent, he or she should be able to say, "This is outwith the parameters of the law and I will not accept it." That is where I come from. Of course there must be ground rules for parents, just as there are ground rules for teachers.

On punishment--not necessarily the belt--I could tell amusing stories about the class that I had to deal with for the last two periods on a Friday. The boys were desperate to leave school, could not wait for their school leaving date, and would be in competition all week to see how much of the belt they could get. Because I was the last teacher on a Friday, I was expected to be the one who would decide the competition. It was great fun for them until they discovered that I was not going to do it. So they had to sort it out before they came to my class. They knew the ground rules that I laid down within my classroom. I believe that that is what we expect within families as well. Children should always understand the parameters of the discipline and the behaviour that is expected of them.

The new clause lays down the social parameters of a responsible and caring society. I hope that all hon. Members will endorse it, because there are valid reasons for doing so.

Mr. Wallace: I, too, support the new clause. The real interest in the debate, which was opened so comprehensively by the hon. Member for Hamilton (Mr. Robertson) is in what in the world the Minister will say in

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opposition to it. We had a foretaste from the hon. Member for Ayr (Mr. Gallie). Let us examine his arguments. First, he argued that because for some technical or procedural reason no one voted for a parallel amendment in Committee that is somehow a compelling argument. He knows full well that that does not stand up at all. The hon. Gentleman then suggested that there was some uncertainty in the law. The present law, however, is far from certain and the courts have interpreted widely what is meant by reasonable chastisement. In the briefing sent to us by Children First, we find that in one case a judge ruled that it was "reasonable" for a mother to use a belt on her nine-year-old daughter, leaving bruising--he said that that punishment was rightly deserved--yet in a different case, just a few weeks later, said that it was "unreasonable" that a mother had slapped her two-year-old in the face. Clearly, the present law is uncertain.

Mr. Devlin: I read that as well, and I felt that a clear distinction was made. One child aged nine had been slapped on the body and the other, aged only two, had been slapped on the face, which was obviously unreasonable.

Mr. Wallace: The hon. Gentleman has made my point even more compellingly by introducing another factor--the age of the child. That complicates matters further, but I find the use of implements to hit even nine-year-old children unacceptable.

Mr. Gallie: Will the hon. Gentleman give way?

Mr. Wallace: I shall deal with the hon. Gentleman's argument in a moment, and then allow him to respond.

The hon. Gentleman mentioned a tap over the knuckles with a pencil, or on the leg with an Order Paper. He knows that such action would not attract proceedings: he knows that the bringing of any criminal prosecution in Scotland will require the procurator fiscal, and he knows that no procurator fiscal would dream of bringing a case in such circumstances. If someone sought to use the civil courts, I suspect that--even if the case got anywhere--zero damages, or damages of 1p, would be awarded. It is as if a motorist was doing 30.5 mph in a 30 mph area: a prosecution simply would not be brought.

Mrs. Ewing: The hon. Gentleman's approach shows much common sense. As a well educated lawyer, however, will he tell us whether hitting a child in the eyes with an Order Paper or poking a child in the eyes with a pencil, as part of a disciplinary procedure, would be prosecutable?

Mr. Wallace: I think so. Indeed, I hope that it would be prosecutable even under the current law. Acceptance of the new clause, however, would put the matter beyond doubt.

Much of what we are discussing must happen within the four walls of a family home. It is clear that enforcement may be difficult. I do not think that we should take the new clause further, and include smacking: that would constitute an intrusion into the family home, and it would be almost impossible to secure any evidence. The fact that cases have been brought to court, however, proves that evidence of

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unreasonable chastisement or chastisement with an implement can be obtained. School authorities, friends or parents may notice a mark on a child.

Mr. Gallie: The hon. Gentleman has defeated his own argument. He says that a smack is okay, but a smack was involved in the instance featuring children aged nine and two that he used to demonstrate the current confusion in the courts. I believe that at that time the court acted wisely and justly, and made a rational decision. The hon. Member for Moray (Mrs. Ewing) mentioned a poke in the eye, and the hon. Gentleman himself said that the present law would recognise that. I think that he has made the case.

Mr. Wallace: I do not agree. I was trying to illustrate the huge discrepancies in the interpretation of the word "reasonable". The position would be clear, however, if a child had been slapped in the face so hard that the evidence remained: that would undoubtedly come into the category of having caused pain for more than a short time. The hon. Gentleman asked what constituted a short time. He may have been such a perfect child that no hand was ever raised against him--there is always a possibility, although the suggestion may stretch the House's credulity--but he probably remembers what it was like to be given a smack on the bottom, and how long the pain lasted. A sensible approach would tell him what sort of time scale we are discussing.

The hon. Gentleman also mentioned public opinion and political correctness. He may be interested to learn that only 3 per cent. of those surveyed by the System 3 poll to which the hon. Member for Hamilton (Mr. Robertson) referred agreed that it should be lawful to hit a three-year-old child with a belt, stick or other object, and only 10 per cent. thought that it should be lawful to hit a 15-year-old with a belt, stick or other object. Given that the Conservatives' poll rating in Scotland is now about 11 per cent., some Conservatives--indeed, quite a number, even at that time--must have thought that the new clause makes good sense. Political correctness, if such it be, is clearly pervading the rump of Conservative support in Scotland.

Opinion poll evidence is important in regard to a change in the law to reflect a change in social conditions. When taking such a step, it is important to carry public opinion. There are two categories: public opinion that considers it unlawful to use a stick, implement or object that would cause harm to a child, and the large body of opinion that would not consider it right to extend that as far as a smack. I believe that the Scottish Law Commission has got the balance right, reflecting public opinion. It is difficult to imagine what opposing arguments the Government may deploy.

Unfortunately the Secretary of State has left the Chamber, but I am sure that the Minister will remember our Second Reading debate in the Scottish Grand Committee in Edinburgh on 5 December. The Secretary of State said:

"The Bill is founded on principles derived from the United Nations convention on the rights of the child".--[ Official Report, Scottish Grand Committee , 5 December 1994; c.4.]

Let me remind the Minister that article 19(1) of that convention, which this country has ratified, states that parties to the convention must

"take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment,

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maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."

I very much doubt whether our current legal position addresses that international obligation, into which the Government have voluntarily entered. I believe that the new clause would meet it, and I hope that the House will accept it.

Mr. Malcolm Chisholm (Edinburgh, Leith): I support this modest measure, which I believe is supported by public opinion. It is regrettable that the hon. Member for Ayr (Mr. Gallie) has not read the Scottish Law Commission report; if he had, he would have had second thoughts about many of the points that he made in his alarming and extreme speech. It concerns me that only four of his hon. Friends are present--five; another has just entered-- [Hon. Members:-- "Six."] It also concerns me that Conservative Members may be whipped through the Lobby to support--

Mr. Deputy Speaker: Order. We have had a good debate this afternoon, and so far we have kept to the amendments. Let us keep to them now.

Mr. Chisholm: I was only going to say that Conservative Members may be whipped to support the status quo and oppose the new clause. We have heard the definition of unreasonable chastisement in Scots law, which is very unsatisfactory. The judgment of whether a child is beaten unreasonably is highly subjective; as a result of that subjectivity, adults have been able to get away with inflicting severe beatings on Scottish children for years--indeed, centuries. The new clause attempts to change that subjective definition into one that is at least partly objective.

It might be simpler to outlaw any kind of hitting, and I am personally attracted to that option, but I realise that it would go too far for public opinion. Many people still wish to administer a modest smack. The new clause tries to draw the line between such chastisement and the serious physical abuse that, as we all know, still goes on day in, day out in Scotland. I ask the hon. Member for Ayr and his colleagues to think seriously before opposing the measure in a knee-jerk reaction.

Let me advance three arguments in support of the new clause. First, I instinctively feel--according to the Scottish Law Commission, the majority of Scottish people feel the same--that it is barbaric for adults to inflict pain on young people, particularly with sticks, belts and similar objects. That is just an emotional reaction but one of which I am proud. I was disturbed to hear the hon. Member for Ayr suggest that he approved even of the sort of barbarity that goes on in Singapore. Most people in this country have a natural revulsion against that and, indeed, physical violence of a less severe nature. If the Conservative party is not persuaded by and does not sympathise with that feeling, it should at least consider--I said this many times in Committee--that the Government have signed up to the United Nations convention on the rights of the child. If that were taken seriously, the Government would have to support the new clause because that convention says that Governments must take legislative measures to prevent physical violence against children. As throughout the Bill, this is a simple matter of the rights of children. In the past, the

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problem has often been that children have not been seen as full human beings. That is often why adults have felt able to beat children.

6 pm

My second argument against striking a child, apart from the simple barbarity of it, is that it is unnecessary. That should be clear if we look around society. Most children are brought up without such treatment and the majority of children are reasonably well behaved. We all know from our own experience that we do not have to treat children in such a way to get them to behave properly and to teach them the difference between right and wrong.

We should consider what has happened in relation to schools. The hon. Member for Ayr will disagree, but he if had read the Scottish Law Commission report he would have realised that it had considered all the evidence on the abolition of corporal punishment in schools and found that that in itself did not make a significant difference. Those of us who have been teachers can add our personal experience to back that view. We know that it is not necessary to treat children in that way.

The third argument that should be taken on board--again, reference was made to this in quite a lot of the evidence to the Scottish Law Commission-- involves the long-term effect of such treatment on the children who receive it. This is perhaps the most important of all the arguments against such treatment. A wealth of evidence suggests that it makes children more aggressive and contributes to violent and anti-social behaviour. The Conservative party should consider that wealth of evidence.

This is a serious point. If one talks to violent criminals in prisons, it is amazing how many of them have been physically abused. Violent figures in history have often suffered such abuse. It brings to mind the fact that this week Alice Miller's book, "The Drama of Being a Child" is republished. She has concentrated on the effect of severe physical beatings on dictators and other vicious characters in history. In this week of all weeks, it would not be inappropriate to reflect that that was one aspect of Adolf Hitler's background. It is important, therefore, that the Conservative party considers the effect of severe beatings on the character and behaviour of young people who must endure them.

Subsection (2) may have something to do with the objections of the Conservative party. Of course the logical conclusion of not allowing parents to strike children in this way is not allowing other adults such as teachers to do so. We all know that certain private educational establishments still allow corporal punishment. It may be that a lobby made up of parents of children at such schools is influencing the Conservative party, but I urge it not to be so influenced or it will be seriously out of step with Scottish public opinion. I know that it is out of step with it on many issues, but it would be particularly regrettable if the Conservative party were to bury its head in the sand on this issue, ignore all the evidence and take what can only be described as a reactionary and deeply damaging position.

Mr. Devlin: I listened carefully to the comments of the hon. Member for Edinburgh, Leith (Mr. Chisholm). We are all concerned that people should not be unduly flogged

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or viciously assaulted. The question is not whether we agree that that is a satisfactory way to treat children--we all agree that it is not--but whether the new clause tabled by the hon. Member for Hamilton (Mr. Robertson) and his hon. Friends is the best way to deal with the matter.

I listened with great interest to the hon. Member for Orkney and Shetland (Mr. Wallace) when he read article 19 of the United Nations convention on the rights of the child. Having been on the Special Standing Committee that dealt with the Bill and having been approached by the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) and others to sign the new clause, with which I have considerable sympathy, I have studied the matter carefully and spent some time on researching the issues around it. I have one or two reservations about supporting them and I shall tell them what they are. Article 19 could be interpreted as calling on the Government to outlaw smacking. Subsection (1) of the new clause states that it would not be a defence if a child were struck

"(ii) in such a way as to cause, or to risk causing, injury; or (iii) in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time."

It all depends on how one interprets the words

"to cause, or to risk causing".

That is the difficulty. I can see why the Government are diffident about writing the new clause into the Bill.

Mr. Wallace: As the hon. Gentleman has shown diligence in relation to the Bill, he will undoubtedly have read the Scottish Law Commission's report, which considered that very point: whether the United Nations convention--

Mr. Devlin: I am coming to that.

Mr. Wallace: The hon. Gentleman will note, however, that the report concluded that the convention did not outlaw an ordinary smack any more than it outlawed an ordinary scolding.

Mr. Devlin: The hon. Member for Hamilton, who opened the debate so well, rightly said that the proposal had been lifted directly from the Scottish Law Commission report. Unlike some of my hon. Friends, I have read the report. It states:

"The vagueness of the existing law exposes children to risk of quite severe violence which parents may believe, rightly or wrongly, to be legally permissible".

That is the whole point. The difficulty is whether their learned Lordships- -and I am an English, not a Scottish lawyer--are correct in their interpretation of the law as it stands.

Under the new clause, the use of such objects as belts or sticks to chastise a child would be outlawed, as would a violent blow. Subsection (4) of the new clause states that section 12(1) of the Children and Young Persons (Scotland) Act 1937 should be repealed. That is the existing Scottish law. My understanding of that law is that a violent blow would be construed as an assault on the

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child, and that it would not be a reasonable defence if parents said that they were only administering reasonable parental chastisement.

Mrs. Fyfe: Will the hon. Gentleman give way?

Mr. Devlin: I should like to cover a few more points.

One or two important points have been made in the debate. The hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) said that we would not allow adults to hit each other with sticks and belts, and that we would not allow them to hit animals with whips, belts or other instruments of that nature, but an interesting distinction exists. We would not allow adults to slap each other--a point that I put to him in an intervention. In Scottish law, a slap, and even the placing of a hand on an arm, is construed as an assault. We allow parents, however, reasonably to chastise their children, and the new clause would still allow parents to administer some reasonable chastisement in the way of a slap.

Of course, the position is different in relation to animals because some animals must be controlled with the use of sticks, straps or whips. That is an everyday part of the animal's management. Anyone who rides a horse knows that it is permissible to strike it with a crop. We see that on our television screens most Saturday afternoons. No one prosecutes jockeys for administering some reasonable encouragement to the horse to run faster, so I do not want to get involved in that point.

The new clause would repeal the existing law--the Children and Young Persons (Scotland) Act 1937--which makes assaulting, ill-treating, neglecting or abandoning children a criminal offence. It would also repeal section 12(7), which allows any parent, teacher or person with lawful control to administer punishment. That, together with the extensive associated case law, leaves individual sheriffs and judges to decide what constitutes reasonable chastisement of children. The law in this area can be confusing. However, in any area the law has to be interpreted on a case- by-case basis. That is why I said in an intervention on the hon. Member for Orkney and Shetland that there was a great of difference depending on the age of the child. He pointed to a case highlighted by the Royal Scottish Society for the Prevention of Cruelty to Children of a judge ruling on appeal that it was reasonable for a mother to use a belt on her nine-year- old daughter, but not reasonable for a mother to slap a two-year-old in the face. Obviously, there would be different degrees of physical chastisement for different children. No one would condone--and no one does under current Scottish law--the use of sticks or straps on very small children.

The proposers of the new clause say that it would significantly tighten the law in this area, provide clear parameters within which sheriffs can exercise discretion and provide a clear statement to parents about what is acceptable physical chastisement for children.

Mr. Wallace: The hon. Gentleman has made an interesting point. Does he accept that one difficulty is that parents do not necessarily know what the law is? Would he hazard a guess at what age, under current Scottish law, it might be legitimate for a parent to take a belt to a child and at what age it might be illegitimate?

Mr. Devlin: As I understand it, there is no age divide-- [Interruption.] I am happy to stand corrected if I am

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wrong. I understand that a parent can chastise a child of about 13 with a belt. That has been held to be acceptable in many cases. However, doing so with a child of 10 has been held to be unacceptable. The hon. Gentleman obviously knows Scottish law better than I do.

There is a problem with the arguments put forward by those who support the new clause. If they want to outlaw all physical chastisement, they have a good case. However, the new clause covers only belts, straps and other instruments. That leaves rather confused arguments. I have great sympathy with the view of the Scottish Law Commission that a safe disciplinary slap involving no risk of injury and no more than transient pain would be no more unlawful under the proposals than it is under existing law. Therefore, why is it necessary to change existing law?

I agree that there should be some guidance. Currently, the discretion to decide what constitutes reasonable physical chastisement lies with individual sheriffs. The question is whether the new clause is the best way to secure the clarity of guidance sought by my colleagues on the Opposition Benches.

Mrs. Fyfe: If the hon. Gentleman feels that we are least travelling in a direction of which he approves--even if we are not going all the way that he would want us to go--will he vote with us so that we can at least achieve some improvement in the law, or will he stick with his hon. Friends who are opposed to any change in the law? Has he read the Scottish Law Commission's statement that the current law is vague and that individual children are suffering because of that?

Mr. Devlin: In fact, earlier in my speech I read that part of the Scottish Law Commission's report into the record. The hon. Lady must have missed it. The current law appears to work quite well, taking into account the fact that it has to be interpreted on a case-by-case basis. I can tell her that I always endeavour to support my hon. Friend the Minister if I possibly can. I look forward with great interest to what he has to say.

Mr. Robert Hughes: As I have listened to the debate, I have been struck by the enormous change in climate that has occurred over the past 10 to 20 years. Had we been having this debate all those years ago, dozens of Conservative Members would have stood up not just to oppose the new clause, but vigorously to state the case for the efficiency of corporal punishment. Today, not a single Conservative Member has said that corporal punishment is the best way to enforce discipline. The hon. Member for Ayr (Mr. Gallie) came closest to doing so when he referred to what happens in Singapore and said that crime there had been wiped out by the use of corporal punishment. I do not want to argue with him, but as Singapore is still using corporal punishment, it cannot be working.

6.15 pm

The hon. Gentleman also said that a section of public opinion believes that behaviour would be much better if the belt was still available in schools and if the birch--or the cane, in England--was still available as corporal punishment for misdemeanours. Those who hold that view express it vociferously, but the Scottish Law Commission takes a different view. An interesting point is that there was a tremendously higher level of violence in Glasgow in the days of the razor gangs, when corporal

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punishment was routinely administered day by day in primary and secondary schools and by parents. Treating violence with violence does not work.

There appears to be a nostalgic view about the use of violence in the past. It struck me as perverse that the press should have presented the funeral of one of the Kray twins as a coming together and healing of the community. There was a suggestion that when the Krays were not in prison, but were carrying out their foul deeds on the streets of east London, it was some sort of paradise. Where does such a nostalgic view come from? I certainly do not know. The truth is that the use of violence, whether by an adult against an adult or by an adult against a child, is wrong. It cannot be justified by giving it some sort of legal respectability.

The climate has changed and it is our duty not only to take account of that, but to try to persuade people that there is a better way of enforcing discipline and a much better way of teaching children the difference between right and wrong than to try to beat sense into them.

I am not a lawyer, but when a question of law has been examined by the Scottish Law Commission I feel that, unless there are very powerful arguments to the contrary, we should support the commission's. What it wants done is quite clear; it has set it out for us. I believe that, in this case, we are duty bound to accept it. I hope that the Government will do so.

Lord James Douglas-Hamilton: When considering this subject, it is useful to examine the current position under the law. A parent can exercise a degree of discipline and moderate chastisement upon his or her children. However, the punishment must be moderate and reasonable in relation to its end. If it is, that constitutes a defence to a charge of cruelty to the child, to a charge of criminal assault and to a claim for damages for civil assault. Discipline is not a right in the strict sense, but a parental power or authority. There is no reason why its exercise cannot be delegated --for example, by a widow or other single mother with an unruly son--to the child's uncle or grandfather.

On the question of the United Nations convention on human rights, in no Scottish case has the exercise of disciplinary powers over children been held to contravene its prohibition, in article 3, of inhuman or degrading punishment. However, the developing jurisprudence of the European Court of Human Rights--although its decisions are not directly enforceable--may influence views of reasonableness.

I mentioned earlier that only reasonable and moderate chastisement is permitted. What is today acceptable punishment by parents may well be limited to slaps and the like which do not cause injury, extensive bruising or long and lasting pain. Excess definitely constitutes an assault. What constitutes excess will vary according to the circumstances of the case, including the age, sex and any known disabilities or weaknesses of the child. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration and its physical and mental effects will all be taken into account.

To slap a child of any age on the face or to knock a child over is an act as remote from reasonable chastisement as anybody could possibly imagine. Punishment which is intended to cause significant physical injury or which is inflicted in disregard of a

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readily foreseeable risk of such injury is clearly excessive. Punishment that goes beyond the reasonable objectives of discipline and is degrading or grossly humiliating is definitely excessive. Where punishment is inflicted without any justification at all or is out of proportion to the triviality of the offence, it may be wrongful and constitute an assault although the physical results may not have been otherwise excessive. An objectionable method of punishment may also constitute excess, irrespective of whether physical harm results.

The court will not sanction as moderate or reasonable punishment which carries with it an appreciable risk of injury, even if that injury does not materialise or is not shown. In any event, it appears that there are certain methods of punishment which are to be regarded as improper and that blows to the head generally come into that category.

Dr. Godman: If the law is so comprehensive in protecting children from what the Minister has described as moderate or reasonable chastisement, why has the Law Commission presented the argument for reform?

Lord James Douglas-Hamilton: The Law Commission provides an invaluable function, but we have a duty to examine its terms very closely. The test that I would apply is that any change in the law should not prevent the court from deciding that an excessive punishment of a child is unlawful.

I have some sympathy with the intention behind the new clause. It is my view that no violence to children should be justifiable under the guise of punishment. On the other hand, we certainly do not want to criminalise the great majority of parents who occasionally have to resort to a safe smack, if only to safeguard their unruly offspring. The law as its stands--both statutory and common law--already offers sufficient protection to children from assault by parents, teachers or others who have charge of children. We must resist new clause 1 as it may prevent the courts from arriving at the conclusion that they felt right in the circumstances.

The Law Commission, in its "Report on Family Law", discussed whether all corporal punishment should be made unlawful. It concluded--rightly in my view--that an outright ban would not have popular support, nor would it be enforceable. Instead, it recommended clarifying the law to make it unlawful to hit a child with a stick, belt or other object or in such a way as to risk causing injury, pain or discomfort lasting for more than a very short period of time. In essence, that is the principle of new clause 1. But I must make Labour Members aware that the formula that they have adopted would not necessarily achieve the objective sought.

New clause 1 would place unnecessary constraints on the power of the courts to take all the circumstances of each case into consideration. That has proved to be a key factor in recent case history. Some reports in the media of such cases may have been misleading. There was the unfortunate case of the girl whose thigh was bruised by a belt. In fact, in that case, the court did not say that it approved of belting children. It found that after taking account of all the circumstances, the act of the mother could not be categorised as criminal.

It has also been pointed out that a blow to the head of a two-year-old was found to be unreasonable. I find that entirely credible. A blow with a hand to the head may be much more dangerous for a young child than for an older

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child being struck with an implement on a less sensitive part of the anatomy. A court has to take many things into account in determining if punishment is reasonable, such as age, sex and known disabilities or weaknesses, the manner and method of execution, duration and the physical and mental effects of what has occurred. New clause 1 may limit courts to only two factors: the use of the implement and discomfort lasting more than a very short period of time. I fear that that may force a court to come to a decision that it did not feel was justified given all the circumstances of the case. It may lead to a court finding against a parent who administered a light tap with some inoffensive--

Dr. Godman: Will the Minister give way?

Lord James Douglas-Hamilton: In a moment. It may lead to a court finding against a parent who administered a light tap with some inoffensive implement, while someone giving a much more severe blow with the hand may escape censure.

Dr. Godman: When were guidelines last issued to sheriffs, especially new sheriffs or temporary sheriffs--these days there seem to be more temporary sheriffs than those with security of tenure--concerning the Minister's definition of what is reasonable chastisement?

Lord James Douglas-Hamilton: Any excessive force against a child in any circumstances should be prohibited and could give rise to a charge of assault. My hon. Friend the Member for Stockton, South (Mr. Devlin) raised- -

Mrs. Ewing rose --

Lord James Douglas-Hamilton: I want to follow through this point. My hon. Friend made a very important point when he raised the question of reasonable punishment being a defence to a charge of assault. That is an assumption on which the new clause is based. It seems to restrict that defence so that it is not available in certain circumstances, such as where a parent strikes the child with a stick. But reasonable punishment is strictly not a defence to a charge of assault. A mother who hits a child may be prosecuted for assault under common law. An essential ingredient of that crime is the existence of evil intent. The courts have held that there is no evil intent when all that the parent did was to administer reasonable punishment to the child. It is not therefore the case that the assault is established and reasonable punishment constitutes a defence. Where there is reasonable punishment, there is no assault at all. The new clause therefore appears to miss its mark entirely. There are other technical difficulties with the new clause. Several hon. Members rose --

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