APPENDIX 19
Memorandum submitted by Children Are Unbeatable!
Alliance
EXECUTIVE SUMMARY
1. The Children Are Unbeatable! Alliance
is an alliance of organisations and individuals which campaigns
for the UK to satisfy human rights obligations by modernising
the law on assault to afford children the same protection as adults.
The more than 400 organisations supporting the Alliance include
Refuge, Relate, Victim Support, Women's Aid Federation for England
and Welsh Women's Aid (see www.childrenareunbeatable.org.uk).
2. With reference to the terms of the
inquiry, this submission addresses primarily the effectiveness
of existing legislation and public education and awareness-raising.
In particular, it focuses on the need for further legal reform
and the need to recognise that violence against children in the
home should come within the definition of domestic violence.
3. Children as people have the same right
to respect for their physical integrity and human dignity and
to equal protection under the law as adults. Government action
on domestic violence should include law reform to give children
the same protection from assault in the home as adults—through
the removal of the defence of "reasonable punishment".
Public education and awareness-raising on domestic violence should
include the promotion of positive, non-violent parenting.
4. The concept of domestic violence underpinning
the Government's actions to date revolves around violence between
partners. The harmful effect on children of witnessing assault
between adults in the home is now legally recognised. It is a
serious anomaly that the law fails to equally protect children
from being directly assaulted in the domestic setting.
EQUALISING PROTECTION
UNDER THE
LAW ON
ASSAULT
5. Currently, the law fails to protect
all persons in the home from violence. Legislative provisions
on assault clearly mean that violence inflicted on an adult is
unacceptable. But section 58 of the Children Act 2004 allows physical
violence to be inflicted on children under the guise of "reasonable
punishment". Section 58 retains possible use of the defence
for parents and some other carers charged with common assault
on children; it removed the defence in relation to charges of
actual bodily harm, grievous bodily harm, wounding and ill-treatment.
The retention of the defence in relation, uniquely, to common
assault on children breaches children's equal right to respect
for their human dignity and physical integrity and to equal protection
under the law. Section 58 sends out a dangerous message about
the acceptability of violence against children. All physical punishment
of children is unsafe. Too often it escalates and parents hit
harder. The Department for Children, Schools and Families is carrying
out a review of the impact of section 58; the overwhelming majority
of submissions from professionals and professional organisations
to the consultation have argued that the defence should be removed
completely.
6. Section 58 also sends a confusing
message to children—the adults in the home must not hit
each other but they may hit the children. This undermines messages
in initiatives to end domestic violence that all violence is unacceptable
because it re-affirms parents' "right" to assault their
children. It presents confusion rather than clarity for those
working against domestic violence. The only human rights compliant,
safe, consistent and just message for the law to send parents
is that all physical punishment of children is wrong. The Government
now states that it does not condone physical punishment of children
by parents. It now needs to act to ensure a consistent legal framework,
compatible with its human rights obligations.
7. If the "reasonable punishment"
defence is removed completely from legislation, children will
have the same protection as adults from being hit or "smacked".
Giving children equal protection means criminalising assaults
on children in the same way and to the same extent as assaults
on adults are criminalised. Under the Domestic Violence, Crime
and Victims Act 2004, common assault is an arrestable offence
in England and Wales. In arguing that children should have equal
protection from assault, we are not suggesting that parents should
be arrested when it is suspected that physical punishment has
been used.
8. While any report of violence against
children has to be investigated to ensure that the child is not
suffering or at risk of suffering "significant harm"
(the threshold for formal investigation under section 47 of the
Children Act 1989), arrest and prosecution of parents for minor
assaults would be in the best interests of children only in the
most exceptional circumstances. Rather, a range of responses should
be developed to ensure that physical punishment is not used by
parents, with prosecution and other formal interventions reserved
for cases in which they appear to be necessary to protect a child
from significant harm and to be in the best interests of the child.
Guidance accompanying equal protection could emphasise how the
law should be implemented in an educative way, supportive to parents
and in the best interests of children.
THE HUMAN
RIGHTS OBLIGATION
TO ENSURE
EQUAL PROTECTION
FOR CHILDREN
9. The UN Committee on the Rights of
the Child, monitoring the UK's compliance with the Convention
on the Rights of the Child, has twice recommended equal protection
to the UK, in 1995 and 2002. In its 2002 report on the UK, the
Committee stated: "... governmental proposals to limit rather
than to remove the "reasonable chastisement" defence
do not comply with the principles and provisions of the Convention...
, particularly since they constitute a serious violation of the
dignity of the child."[69]
10. In July 2006, the UN Committee on
the Rights of the Child issued a General Comment on the right
to protection from corporal punishment. This reminded all States
which have ratified the Convention on the Rights of the Child,
including the UK, that equal protection for children is an "an
immediate and unqualified obligation". The Committee stated:
"... the Convention requires the removal of any provisions
(in statute or common—case—law) which allow some degree
of violence against children (eg "reasonable" or "moderate"
chastisement or correction), in their homes/families or in any
other setting."[70]
11. The UN Committee on Economic, Social
and Cultural Rights has also recommended that the UK prohibit
physical punishment of children in families, stating in 2002:
"Given the principle of the dignity of the individual, which
provides the foundation for international human rights law ...
the Committee recommends that the physical punishment of children
in families be prohibited, in line with the recommendation of
the Committee on the Rights of the Child ...."[71]
12. In 2005, the European Committee of
Social Rights found UK law to be in breach of human rights obligations
under the European Social Charter, concluding that "since
there is no prohibition in legislation of all corporal punishment
in the home, the situation is not in conformity with Article 17
of the Charter".[72]
13. The report of the UN Secretary-General's
Study on Violence against Children, presented to the General Assembly
in October 2006, calls on all countries to prohibit all violence
against children, including all corporal punishment, including
in the home, by the year 2009.[73]
Sixteen European countries have enacted legislation which gives
children equal protection from assault—Austria, Bulgaria,
Croatia, Cyprus, Denmark, Finland, Germany, Greece, Hungary, Iceland,
Latvia, Netherlands, Norway, Romania, Sweden and Ukraine—and
at least nine others have made public commitments to full prohibition.
In 2007 New Zealand became the first English-speaking country
to give its children equal protection. (Further information at
www.endcorporalpunishment.org)
14. Within the UK, removal of the defence
of "reasonable chastisement/punishment" has been recommended
by the UK's Children's Commissioners (2006), the independent Commission
on the Family and Wellbeing of Children (2005), the National Assembly
for Wales (2004), the UK parliamentary Joint Committee on Human
Rights (2003) and the House of Commons Health Select Committee
(2003). In a joint statement made in 2006, the UK Children's Commissioners
wrote: "Children have the same right as adults to respect
for their human dignity and physical protection and to equal protection
under the law, in the home and everywhere else. There is no room
for compromise ...."
RATIONALISING THE
SCOPE OF
"DOMESTIC VIOLENCE"
15. The concept of domestic violence
underpinning the Government's actions to date revolves around
violence between partners. The harmful effect on children of witnessing
assault between adults in the home is now legally recognised.
It is a serious anomaly that the law fails to equally protect
children from being directly assaulted in the domestic setting.
16. It is crucial that the scope of the
Government's legislative actions on domestic violence be extended
to fully encompass all violence against children in the home.
This requires first and foremost that children be given the same
protection from assault in the home as adults through the complete
removal of the defence of "reasonable punishment". It
also requires that all potential victims of violence in the home—including
children—be included in the definition of domestic violence,
and that public education and awareness-raising on domestic violence
include the promotion of positive, non-violent parenting skills.
In Wales, the National Assembly has adopted a definition of domestic
violence which includes direct violence inflicted on children.
The National Assembly also supports complete removal of the "reasonable
punishment" defence to give children equal protection; devolved
powers do not as yet enable the Assembly to enact this reform.
17. The Government's actions on domestic
violence to date, while positive in many respects, bypass completely
one of the key factors contributing to violent behaviour—physical
punishment by parents. It is not uncommon for men to "justify"
hitting or slapping their partners by referring to women's behaviour,
as if they somehow "deserved" to be hit as punishment
for some wrongdoing. The very notion of hitting as a punitive
response to another person's behaviour is deeply ingrained because
it is legally and socially accepted in bringing up children. The
law now rightly recognises that, whatever an adult's real or perceived
"misbehaviour", physical violence is an unacceptable
response. Extending that legal protection to children—those
who are especially vulnerable to violence—is long overdue.
18. Too often violence against children
is disguised as discipline. But physical punishment of children
by parents in the domestic setting is domestic violence. And a
home where children are allowed to be hit by adults can never
be violence-free.
1 Ocotber 2007
69 Committee on the Rights of the Child, concluding
observations on the UK's initial and first periodic reports under
the Convention on the Rights of the Child, CRC/C/15/Add.34, 1995,
paras. 16 and 31; CRC/C/15/Add.188, 2002, paras 35-37. Back
70
Committee on the Rights of the Child General Comment No. 8 "The
right of the child to protection from corporal punishment and
other cruel or degrading forms of punishment (arts. 19; 28, para.
2; and 37, inter alia)" Full text at www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.GC.8.En?OpenDocument. Back
71
E/C.12/1/Add.79, concluding observations on the fourth report
of the UK, the Crown Dependencies and the Overseas Territories,
para.36. Back
72
July 2005, Conclusions XVII-2 Back
73
Report of the Independent Expert for the United Nations Study
on Violence against Children, Paulo Sérgio Pinheiro, A/61/299,
paras. 97 and 116; see www.unsvac.org Back
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