APPENDIX 26
Memorandum submitted by Children Are Unbeatable!
Alliance Cymru
`Sdim Curo Plant/Children Are Unbeatable!
Alliance Cymru is an alliance of organisations and individuals
which campaigns for the UK to give children the same protection
from physical assault as enjoyed by adults. The campaign has more
than 400 supporters, individuals and organisations, in Wales.
The Campaign also has the support of
the Welsh Assembly Government, which has been unequivocal in its
wish for a removal of the defence of "reasonable chastisement"
and "reasonable punishment" since 2002.
`Sdim Curo Plant/Children Are Unbeatable!
Alliance Cymru believe that the existence of Section 58 of the
Children Act 2004, allowing for the defence of "reasonable
punishment" of children under the age of 18 by a parent or
carer works against current definitions and understanding of domestic
abuse in the UK, and provides a substantial stumbling block to
progress in removing violence from the home.
This submission is made with particular
reference to the following areas:
— Public education and awareness-raising.
— Police powers and legal protections
for victims.
— Multi-agency approaches, and
what barriers exist to their effective operation.
1. `Sdim Curo Plant/Children
are Unbeatable! Cymru believe that the current situation, where
children can be legally hit because of the existence of the defence
of "Reasonable Punishment" denies children their fundamental
human rights.
2. The current situation makes
nonsense of the UK government's approach to domestic violence.
Violence against children in the home should come within the definition
of domestic violence. The current situation, where children are
recognised as victims of domestic abuse where they witness domestic
abuse, but not victims when they are on the receiving end of physical
violence is not tenable. Instead, the UK government appears confused
itself on the matter:
"The Government does not consider `domestic
violence' to be justifiable. Clearly, the sort of action that
would be recognised as domestic violence is illegal without qualification,
and should be dealt with before the courts, regardless of the
age or gender of the victim. There is nothing in English law
or prosecution practice that prevents this." (Letter from
Wendy Saunders, Public Communications Unit, DfES, March 29th 2007
to individual CAU! supporter, with regard to the physical assault
of children)
This statement is incorrect. Some actions
recognised as domestic violence only apply to adult victims:
"Domestic violence is any incident of threatening
behaviour, violence or abuse between adults who are or have been
in a relationship together, or between family members, regardless
of gender or sexuality" (Home office web site) http://www.homeoffice.gov.uk/crime-victims/reducing-crime/domestic-violence/)
Actions which would be regarded as domestic
violence when they occur between adults cannot currently be regarded
as domestic violence when the victim is a child, and the defence
of "reasonable punishment" can be applied.
3. The Welsh Assembly Government
has taken a principled stand in opposition to the defences of
Reasonable chastisement/reasonable punishment since 2002. For
example:
January 14 2004 -Debate on Children's Green
Paper, Amendment 5
"The National Assembly regrets that the
UK government continues to retain the defence of reasonable chastisement
and has taken no significant action towards prohibiting the physical
punishment of children in the family"
(In favour 41, Abstain 3, Against 9)
Current UK law, allowing "reasonable punishment"
makes multi agency working in Wales extremely difficult.
The Welsh Assembly Government stance against
physical punishment was expressed within the context of providing
support to parents as well as a child's right to be protected.
"Whatever the legal position, I believe
that our approach needs to be based on support for positive parenting.
The key is to support parents and others who care for children
and to promote positive relationships in families. We must seek
to change social attitudes so that physical punishment of children
is no longer considered acceptable, no matter what context"
(NAfW Record of Proceedings/Cofnod for 23 October 2002)
4. The All Wales National
Strategy on Domestic Abuse definition is:
"Domestic Abuse is best described as the
use of physical and/or emotional abuse or violence, including
undermining of self confidence, sexual violence or the threat
of violence, by a person who is or has been in a close relationship.
. . . . . .
It can also include violence inflicted on, or
witnessed by, children."
(Tackling domestic Abuse: The All Wales National
Strategy. Welsh Assembly Government 2005 http://new.wales.gov.uk/dsjlg/publications/commmunitysafety/domesticabusestrategy/strategye?lang=en)
Again, this is difficult to apply in Wales when
the defense of "reasonable punishment" exists.
5. 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.
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.
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." (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)
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."
(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)
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 . . ." ( E/C.12/1/Add.79,
concluding observations on the fourth report of the UK, the Crown
Dependencies and the Overseas Territories, para.36)
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". (July 2005, Conclusions
XVII-2)
13. 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 . . ."
14. 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.
15. 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.
16. 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.
2 October 2007
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