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5.45 pm
Annette Brooke: I thank the hon. Gentleman for his intervention and see the point that he is getting at. I can clarify part of it by saying that foster carers who are employed by the state are not allowed to administer physical punishment-there is an anomaly there in respect of private foster carers. I think that that partially answers his point. Obviously there is a concern, which he has justifiably raised, about situations involving a degree of parental responsibility, and I accept that I would need to seek further clarification on that specific point.
I tabled this new clause to keep the matter in front of the Government's eyes. There is an anomaly, the Government have not been able to introduce a better form of words and the organisation that suggested the new clause took pretty senior legal advice on the phrasing-the new clause received serious consideration at that level. The point of proposing the new clause is to ensure that this important issue stays in the public eye, as we do not want it to disappear during an election campaign. The reason why I am speaking at length today is because I want this Government to promise to address this serious issue.
Jim Cousins:
I do not intend to detain the House for long, and I wish to address my remarks entirely to new clause 1 and related issues. As a result of my experience of serious case reviews in my city, I am extremely sympathetic to the case made by the hon. Member for East Worthing and Shoreham (Tim Loughton) and the
contents of new clause 1. However, I acknowledge that the recent changes made to the workings of serious case reviews and local safeguarding children boards by my right hon. Friend the Secretary of State are also important and ought to be mentioned. I am talking about the fact that the boards should have an independent chair-that is one deficiency that I can see in the matters to which I wish to refer-and that two lay people should be members of these boards. I have met people from my local board to discuss the matters to which I wish to refer, so I am able to say that those lay people might find themselves in a difficult position. If they are to be effective, they will require a great deal of support, back-up and extra bureaucratic and research capacity in order to have the confidence to raise issues as the only lay members in a body that is otherwise dominated by professionals. My Front-Bench colleagues may wish to refer to that later.
I have had the unfortunate experience of dealing with two serious case reviews into the deaths of children. One related to a constituency case where a baby burned to death in a property. The baby's mother had a history of mental illness and other difficulties. At first she said that people from the neighbourhood had come into the house and burned it down-hon. Members will appreciate how damaging that was to the local community-but subsequently it became clear that she was responsible for the death of the child, which triggered the serious case review.
The executive summary of the serious case review, which is all that we now know about the case, rehearses the connections that this young woman had with a number of agencies. It also makes it clear that at the birth of her baby, her attitude changed and she was a devoted and careful mother. Research carried out later, which came to my attention and was brought about by the Department for Children, Schools and Families, leads me to think that this is a classic case of what is known in the research field as "start again syndrome". I am grateful to the research commissioned by my right hon. Friend the Secretary of State for that discovery.
The executive summary of the case review concludes:
"Despite the indications of risk to"
"which are evident with the benefit of hindsight, it should be acknowledged that he had been a wanted and well cared for baby. His mother was selective in deciding which information she divulged to each agency and in deciding which help she would accept...The events which led to"
"death were unpredictable and, as such, could not have been prevented."
When I came to read that some months later, I was deeply troubled by the idea that events that are unpredictable cannot be prevented. That is a leap of logic no one concerned with risk assessment procedures could very easily accept.
When I looked further into the matter, I discovered that at the very moment that the executive summary was released, the local authority issued a press release, embargoed to the time of the release of the executive summary, which began in this fashion:
"A review following the unlawful killing of baby"
"by his mother has found that his death could not have been prevented."
That is, in itself, an extraordinary interpretation of the remarks in the executive summary. The press release, in turn, was accompanied by a statement issued by the author of the serious case review, the first sentence of which read:
"The events which led to"
"death were unpredictable and, as such, could not have been prevented."
I find the fact that the three documents were issued within the same time frame quite disturbing as an account of that set of circumstances. I was even more concerned when I discovered the same phrases-expressing the idea that things that could not be predicted could not be prevented-being mentioned in other serious case reviews in other parts of the country, almost as though there was a culture of offering up such phraseology as a justification for the events that had taken place. I am extremely concerned by that.
I looked further into the case and discovered that both serious case reviews carried out within a year concerning the death of children were carried out by the same person, who was the regional chair of a charity that received grant aid from the local authority that was running the local safeguarding children board. I am troubled by that. Let me make it clear that the lady who authored the two serious case reviews did not receive any benefit as a result of the grant aid. I make no suggestion of anything like that, but none the less I am troubled by the idea that two serious case reviews in the same time frame can be carried out by the same person who is also acting in a lay and voluntary capacity and receiving a grant from the local authority that supports the local safeguarding children board. I do not think that that survives any valid test of proper independence.
I am troubled by these matters, as well as by the phrases that express the idea that things that were not predictable could not have been prevented-if we applied them to other matters with which this House deals, we would all be very troubled by them. I am concerned about these matters, which lead me to the conclusion that new clause 1 points us in the right direction, and so I am inclined to support it. I hope that what my right hon. Friend the Secretary of State says in his speech will lead me to a different conclusion, but that is where matters stand.
Mr. Cash: I want to confine my remarks to new clause 10, and the issue of reasonable punishment. With respect to the hon. Member for Mid-Dorset and North Poole (Annette Brooke), I have to say that I found her explanation somewhat confusing. She started out by invoking the Secretary of State and his statements in the context of a letter from Sir Roger Singleton, which will be followed up by a review, saying that the Secretary of State-he is sitting on the Front Bench now, so he can correct me, and the hon. Lady, if he was misrepresented-said that the use of physical punishment was wrong, and that there should be none in schools at all. I do not know whether he wants to take the opportunity to confirm whether that is the correct analysis of what he has in mind. He is sitting there, but he is not listening-
Mr. Cash: He is listening. Good. Is that what he said?
Ed Balls: The hon. Gentleman has just set out the current legal position with 100 per cent. accuracy.
Mr. Cash: That, if I may say so, is something that we need to discuss. The Liberal Democrat proposal in new clause 10 would amend the Children Act 2004, and presumably the Government have a view on that- [ Interruption. ] The Liberal Democrats' chief spokesman, the hon. Member for Yeovil (Mr. Laws), indicates that he is not at all sure that the Government have a view on this, but we shall see in due course whether they do. The Government introduced the Children Act 2004, and the Liberal Democrats propose to amend section 58 of it, which deals with the question of reasonable punishment and represents the Government's position in law at the moment.
Mr. Laws: It might help the hon. Gentleman to know, as he might not have been aware of the context earlier, that when my hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) was referring to the Secretary of State, it was in the context of his response to the hon. Member for Keighley (Mrs. Cryer), and a question about whether the specific loophole concerning educational settings should be closed.
Mr. Cash: I understand that but, as I may be able to explain as I move into the argument, the law on this subject is perhaps a little more complex than the hon. Member for Mid-Dorset and North Poole suggested.
Let me go back to what I was saying. The Liberal Democrats propose to insert a new provision in section 58 of the Children Act 2004. For the purposes of the amendment, it may be described as subsection (4A). After subsection (4), the following words would appear:
"Only a person with parental responsibility for a child"-
I emphasise the phrase "parental responsibility"-
"within the meaning of section 3 of the Children Act 1989 can justify battery of the child on the ground that it constituted reasonable punishment."
The Secretary of State nods his head-that is the statement contained in the new clause proposed by the Liberal Democrats. It clearly infers-I want to get this out of the way-that those with parental responsibility for a child, within that meaning, could justify the battery of a child on the ground that it constituted reasonable punishment. The question that we must address is whether those in the list that the hon. Member for Mid-Dorset and North Poole read out-sports coaches, madrassahs, nannies and certain people in loco parentis-would fall within that category.
6 pm
Mr. Cash: The Secretary of State indicates that they would not fall within that category. For the purposes of what I understand to have been an exchange of letters followed by a review by Sir Roger Singleton, the question would turn on whether teachers would be prohibited from taking certain actions.
Mr. Cash: Perhaps the Secretary of State would be kind enough to explain the situation.
Ed Balls: This is a rather frustrating exchange, Mr. Deputy Speaker. When the hon. Gentleman has finished speaking I will explain the position. I cannot do that at sufficient length in an intervention, but I shall be happy to clarify the position for him as soon as he allows me to.
Mr. Cash: I am grateful to the Secretary of State for his comments, and I shall listen to what he has to say in due course. The argument of the hon. Member for Mid-Dorset and North Poole struck me as being somewhat confusing, but no doubt we will find out from the Secretary of State what he intends to lay down, although the amendment is not his. This is where the confusion arises: unfortunately, the Government have not made a proposal, and things seem to be being done vicariously through the Liberal Democrats' amendment. [ Interruption. ] I can see the Secretary of State's frustration, so I shall give him another opportunity to speak. [ Interruption. ] He says that he does not need it-fine.
The legal effect of section 58 of the 2004 Act-it might be helpful for the Secretary of State to listen to this-is to remove the defence of reasonable punishment in any charge of assault occasioning actual bodily harm, or of wounding and causing grievous bodily harm, under the Offences against the Person Act 1861, or in any charge of cruelty to a child under the Children and Young Persons Act 1933. I think that we all want to avoid any disproportionate treatment, chastisement or punishment of a child that falls within the category of a charge of cruelty, wounding or grievous bodily harm. The problem arises in the context of case law and the interaction between that case law, the Human Rights Act 1998 and the European convention on human rights, which I shall discuss in a moment.
The defence of reasonable punishment dates back to 1860, when the characteristics were spelt out by the judiciary because there were no relevant statutes at that time. In one case, Chief Justice Cockburn said:
"By the law of England, a parent...may for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable."
The legal position was that it was then left to the courts, or to juries, to decide what was moderate and reasonable in the view of an ordinary person in any particular case. Of course, people's views on such matters alter and evolve over time.
I suspect that the Secretary of State well knows that between 1860 and 2004, a parent who was charged with a crime relating to an assault on their child was able to raise the defence of reasonable punishment. However, since the enactment of section 58 of the 2004 Act, that defence cannot be used unless the defendant is charged only with common assault, the victim is a child, and the defendant is the parent of that child or is a person acting in loco parentis.
Mr. Cash: I am glad to see that we are now in agreement.
Ed Balls:
The issue is whether a teacher in a Sunday school or a madrassah should be able to claim the reasonable punishment defence for the use of physical punishment on the grounds that they are acting in loco
parentis. That is our concern, and that is what the amendment seeks to address. I was nodding only because I think that we agree on the problem. Obviously, we are anxious to get on to discussing solutions.
Mr. Cash: That is where I am about to move to, but we needed to identify the parameters before moving to questions of substance and merit. It is arguable that there are circumstances in which people in loco parentis-that includes not just parents, but people with parental responsibility, so it is a reasonably wide category-should be able to take certain actions. The question is whether teachers and those in similar positions of responsibility should have the right in certain circumstances to take such action as would be available to a person in loco parentis, and whether they could therefore be justified in taking action that would amount to what one might call, in round language, reasonable chastisement.
I am sure that the Secretary of State knows that there are problems in schools. Evidence has recently been presented to me of teachers being subjected to extremely difficult circumstances, including violent behaviour. We must ask whether there should be a blanket prohibition on certain actions, without regard to the circumstances of the parent or other person in loco parentis. The definition of children includes not only five, six and seven-year-olds, but older children who might be described as youths. That applies not only to boys; I regret to say that these days it might also apply to girls. In some cases a school, or another establishment of the kind to which the Secretary of State and I agree that the rule might apply, might be in such a state that the person who is charged with maintaining discipline might not be able to run things. I have heard from supply teachers, fairly recently, that they have found it absolutely impossible to conduct any teaching in certain classrooms because of the degree of bad behaviour and violence exhibited.
Mrs. Ann Cryer (Keighley) (Lab): Is the hon. Gentleman arguing for the reintroduction of corporal punishment in schools? Is he saying that the problems he is discussing would be solved if teachers could hit those kids?
Mr. Cash: I do not put it in quite such precise terms as the hon. Lady would like to draw me into doing. I am deeply concerned about the shift, since 1998, when the new standards were introduced. I suspect, but I am not absolutely certain, that it was connected with the introduction of the Human Rights Act 1998, which I shall discuss later.
Ed Balls: I am very sorry to disappoint the hon. Gentleman, but it was the Education Act 1996 that banned the use of corporal punishment in full-time maintained schools and full-time independent schools, not any 1998 Act. It was not to do with human rights; it was to do with the Conservative Government of 1996 doing the right thing-perhaps with, or perhaps without, his support.
Mr. Cash: The short answer to that question is that, as I said earlier, all such matters are subject to review in the light of the circumstances of the time. On the whole, one would rather not have corporal punishment in schools, but teachers and those who observe these matters have wondered whether the prohibition against such punishment is justified. That is an important question, as circumstances evolve.
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