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Mr. Dawson rose—

Tim Loughton: I will not give way.
 
2 Nov 2004 : Column 260
 

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

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

5.45 pm

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

The Prime Minister said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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