Formal Minutes
Wednesday 8 September 2004
Members Present:
Jean Corston MP, in the Chair
| Lord Bowness
Lord Campbell of Alloway[168]
Lord Judd
Lord Lester of Herne Hill
Lord Plant of Highfield
| Mr Kevin McNamara MP
Mr Richard Shepherd MP
Mr Paul Stinchcombe MP
|
The Committee deliberated.
* * * * *
Draft Report [Children Bill], proposed by the Chairman,
brought up and read.
Ordered, That the draft
Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 20 read and agreed to.
Question put, That paragraph 21 stand part of the
report.
The Committee divided:
Content, 5
Jean Corston MP
Lord Judd
Mr Kevin McNamara MP
Lord Plant of Highfield
Mr Paul Stinchcombe MP
| | Not Content, 2
Lord Campbell of Alloway
Lord Lester of Herne Hill
|
Paragraphs 22 to 140 read and agreed to.
Paragraph 141 read as follows:
"141. The trend in other international monitoring
bodies, including the Committee on the Rights of the Child, is
increasingly to emphasise the human dignity of the child as the
foundational value in the protection of children's rights, and
to recognize a child's right to physical integrity. These developments,
which we consider further below, are likely increasingly to influence
the Court of Human Rights in its interpretation of Convention
standards in cases concerning children. The Court is increasingly
referring to the CRC in the course of its judgments in such cases:
in Sahin v Germany, for example, the Court recently said "the
human rights of children and the standards to which all governments
must aspire in realizing these rights for all children are set
out in the Convention on the Rights of the Child". Although
the Court has yet to address the gaps between the ECHR's protection
for the rights of children and that provided by the CRC, we
think it is likely, given the near-universal acceptance of the
standards contained in the CRC, that the Court will begin to close
the gaps in protection by interpreting Convention standards in
light of the CRC, and that, eventually, the continued availability
of the defence of reasonable chastisement may be held to be incompatible
with Convention rights.".
Amendment proposed, in line 1, to leave out from
"The" to the end of the paragraph and insert, "European
Court of Human Rights increasingly makes reference to the CRC
in its interpretation of Convention standards in cases concerning
children. We believe, for the reasons set-out below, that the
new clause 49 complies with the CRC, and therefore that the European
Court of Human Rights would find that English law and practice
meet the standards of the ECHR read alone and together with the
CRC."—(Lord Lester of Herne Hill.)
Question put, That the Amendment be made.
The Committee divided:
|
Content, 2
Lord Lester of Herne Hill
Lord Plant of Highfield
| | Not Content, 5
Jean Corston MP
Lord Campbell of Alloway
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
|
Paragraph 141 agreed to.
Motion made, and Question put, to leave out paragraph 142 and
insert the following paragraphs in its place:
"142. Article 2 CRC requires States to, "take
all appropriate measures to ensure that the child is protected
against all forms of discrimination". Proponents of a ban
on light smacking by parents have construed this Article to mean
that there must be no distinction in the law on assault between
children and adults. We are not persuaded by this argument. The
principle of equal protection under the law is a vital constitutional
principle, but it is not a mechanistic principle requiring literal
equality in all circumstances. A difference in treatment may be
justified by a difference in context. A parent disciplining a
child cannot be equated with one adult hitting another adult.
It is universally accepted that parents are responsible for disciplinary
action in relation to their children as part of their child-rearing
obligations, whereas adults do not have the same responsibilities
towards each other. We do not consider that the new clause 49
creates or perpetuates discrimination between children and adults.
142A. We note that even the proponents of an absolute
ban do not seek to prosecute parents who smack their children
without causing physical, emotional or psychological harm. However,
we agree with the Attorney General that to leave fundamental policy
decisions to the prosecutor is to breach the principle of legal
certainty anchored both in international human rights law and
the common law." —(Lord Lester of Herne Hill.)
The Committee divided:
|
Content, 2
Lord Lester of Herne Hill
Lord Plant of Highfield
| | Not Content, 5
Jean Corston MP
Lord Campbell of Alloway
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
|
Paragraph 142 agreed to.
Paragraph 143 read as follows:
143. We conclude that, on the current state of
Convention law, there is no present incompatibility between UK
law, as amended by the new clause 49, and Convention rights. We
consider that, in light of recent developments in the interpretation
of other international instruments by the relevant monitoring
bodies, and the increasing tendency of the Court of Human Rights
to look to the CRC as a source of standards concerning children,
there is a risk that in a future case the European Court of Human
Rights will find that the continued availability of the reasonable
chastisement defence to the offence of common assault is in breach
of a child's right to dignity and personal integrity under Article
3, their right to physical integrity under Article 8, and/or their
right not to be discriminated against compared to adults in relation
to their enjoyment of those rights on grounds of their age. No
such incompatibility exists at present, however.
Amendment proposed, in line 3, to leave out from
"Convention rights." to the end of the paragraph.—(Lord
Campbell of Alloway.)
Question put, That the Amendment be made.
The Committee divided:
|
Content, 3
Lord Campbell of Alloway
Lord Lester of Herne Hill
Lord Plant of Highfield
| | Not Content, 4
Jean Corston MP
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
|
Another Amendment proposed, in line 11, to leave out the words
"No such incompatibility exists at present, however.".—(Lord
Judd.)
The Committee divided:
|
Content, 3
Lord Judd
Mr Kevin McNamara MP
Lord Plant of Highfield
| | Not Content, 5
Jean Corston MP
Lord Campbell of Alloway
Lord Lester of Herne Hill
Mr Richard Shepherd MP
Mr Paul Stinchcombe MP
|
Paragraph 143 agreed to.
Paragraphs 144 to 152 read and agreed to.
Motion made, and Question put, to leave out paragraphs
153 to 156 and insert the following paragraphs in their place:
"153. In our view, it is essential to have regard
to the object and purpose of Article 19 CRC and to the language
in which the relevant provisions are expressed. Its preamble emphasises
that "the family, as the fundamental group of society and
the natural environment for the growth and well-being of all its
members and particularly children, should be afforded the necessary
protection and assistance so that it can fully assume its responsibilities
within the community." It recognizes that "the child,
for the full and harmonious development of his or her personality,
should grow up in a family environment, in an atmosphere of happiness,
love and understanding." It notes that "the child, by
reason of his physical and mental immaturity, needs special safeguards
and care, including appropriate legal protection, before as well
as after birth".
154. Article 2.2 requires the States Parties to take
all appropriate measures to ensure that "the child is protected
against all forms of discrimination or punishment on the basis
of the status, activities, expressed opinions or beliefs of the
child's parents, legal guardians or family members." In General
Comment No.5 (2003),[169]
the Rights of the Child Committee emphasised that "the application
of the non-discrimination principle of equal access to rights
does not mean identical treatment." Article 3 makes the best
interests of the child the primary consideration.
155. Article 5 obliges the States Parties to respect
"the responsibilities, rights and duties of parents …
to provide, in a manner consistent with the evolving capacities
of the child, appropriate direction and guidance in the exercise
by the child of the rights recognized in the present Convention".
156. The provisions dealing with child violence are
contained in Article 19 and Article 37. Article 19.1 requires
States Parties to take all appropriate legislative, administrative,
social and educational measures to protect the child from all
forms of physical or mental violence, injury or abuse, neglect
or negligent treatment, 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. The Rights
of the Child Committee has not yet published General Comments
which read and give effect to this text.
156A. However, in our view, the reference to "appropriate
legislative, administrative, social and educational measures"
indicates that the State has a wide area of discretion in deciding
the choice of means appropriate to ensure effective child protection
against violence. Legislative measures are not the only measures
which may be chosen. This is also made clear in Article 19.2 which
refers to effective procedures for the establishment of social
programmes. As regards the meaning of "violence" in
Article 19.1, and "child maltreatment" in Article 19.2,
neither the object and purpose nor the language of those provisions
suggests that mild parental smacking is to be regarded as a form
of "physical or mental violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including
sexual abuse". Plainly, mild parental smacking does not constitute
"torture or other cruel, inhuman or degrading treatment or
punishment" within the meaning of Article 37 (a) CRC. To
suggest otherwise would be to weaken the pressing need, in this
country and across the world, to take effective action against
the serious social evils of violence and child maltreatment, which
are an affront to human dignity. It would also fail to respect
what Article 5 CRC describes as the "responsibilities, rights
and duties of parents".
156B. Read literally, the observations of the Rights
of the Child Committee, set out above, appear to suggest that
only an absolute ban on smacking, however trivial and transitory
the harm to the child, will comply with the requirements of Article
19.1. Again read literally, the Committee's approach appears to
make no allowance for the wide area of discretionary judgment
left to States Parties as to the choice of means of achieving
the aims of the CRC. The Committee acknowledges[170]
that it "cannot prescribe in detail the measures which each
or every State Party will find appropriate to ensure effective
implementation of the Convention." The very diversity of
the legal and social cultures of the countries of origin of the
members of the Committee[171]
suggests that the Committee does not seek to impose a rigid template
upon the States Parties, requiring loving and caring parents to
be criminalised when they smack their children in a way that does
not cause harm. The views expressed by the body charged with examining
the progress made by the States Parties in achieving the realisation
of the obligations undertaken in the CRC are to be treated with
great respect. However, the Rights of the Child Committee is not
a judicial body, and its observations do not constitute the equivalent
of a binding legal judgment from the European Court of Human Rights.
Nor, as we have observed, has the Committee published General
Comments on the scope and effect of Article 19 and Article 37.
156C. It is unclear whether the Committee consider
that the international standards contained in the CRC require
States to compel parents to risk the infliction of criminal sanctions
for mild smacking in a disciplinary context. If this is so, we
respectfully disagree with the proposition that such an absolutist
position is required by the CRC or any other international human
rights instrument. In our view, such an approach would lack a
sense of proportion. If, on the other hand, the Committee consider
that mild smacking should be criminalised but prosecuted only
at the prosecutor's unfettered discretion, then, like the Attorney
General, we would regard such an approach as being in breach of
the principle of legal certainty, which is an important general
principle of international human rights law. In short, it would
seem that the Committee's approach is not based upon a true reading
to the CRC.
156D. We venture to express our hope that the Rights
of the Child Committee might develop its thinking further in the
light of the parliamentary debates on the Children Bill and of
this report. There are important issues of legal and social policy
at stake that do not, in our view, lend themselves to uniform
solutions in all States Parties. In any event, we consider the
Bill as amended, together with the revised charging standards,
and what Article 19.1 describes as "appropriate administrative,
social and educational measures", to be fully compatible
with the obligations undertaken by the United Kingdom under the
CRC.
156E. We note that, on 12 February 2003, the UN Secretary
General appointed Paulo Sergio Pinheiro of Brazil as the independent
expert to lead a global study on violence against children. The
purpose of the study, which will be guided by the CRC, is to provide
an in-depth picture of the prevalence, nature and causes of violence
against children, and to make recommendations for consideration
by Member States, the UN system and civil society for appropriate
action, including effective remedies and preventive and rehabilitative
measures at the national and international levels. We look forward
to studying the outcome of this study, and hope that this report
will be taken into account." —(Lord Lester of Herne
Hill.)
The Committee divided:
Content, 3
Lord Lester of Herne Hill
Lord Plant of Highfield
Mr Richard Shepherd MP
| | Not Content, 5
Jean Corston MP
Lord Campbell of Alloway
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
|
Paragraph 153 to 156 agreed to.
Motion made, and Question put, to leave out paragraphs 157 to
161 and insert the following paragraph in their place:
"153. We note that the ICESCR and the European
Social Charter also state that violence against children must
be legislated against. For the reasons given above, the Committee
is of the view that the new clause 49 is compatible both with
the ICESCR and with the European Social Charter."—(Lord
Lester of Herne Hill.)
The Committee divided:
|
Content, 2
Lord Lester of Herne Hill
Lord Plant of Highfield
| | Not Content, 4
Jean Corston MP
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
|
Paragraphs 157 to 163 read and agreed to.
Motion made, and Question put, to leave out paragraphs 164 to
171 and insert the following paragraph in their place:
"164. We agree with the Attorney General
that the new clause 49 complies with the requirement of legal
certainty, and that the criminalisation of all assaults upon children
by adults, leaving the decision whether to prosecute parents to
the discretion of the Director of the Public Prosecutions, would
not fulfil the requirement of legal certainty."—(Lord
Lester of Herne Hill.)
The Committee divided:
|
Content, 2
Lord Lester of Herne Hill
Lord Plant of Highfield
| | Not Content, 4
Jean Corston MP
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
|
Paragraph 164 read and agreed to.
A paragraph—(Lord Judd)—brought up and read
as follows:
"It can equally be argued that considerations
of legal certainty militate in favour of a total repeal of the
reasonable chastisement defence. A total prohibition of corporal
punishment would be legally clear and there would be legal certainty
in that smacking of a child would be unlawful. Parents would not
have to form an opinion as to what is "light smacking"
and what is more heavy handed smacking. Such a distinction is,
in our view, subjective and focuses on the intentions of the accused
with, inevitably, different results in difference cases. This,
we would argue, results in legal uncertainty. A complete ban is
precise, clear and the consequences of its breach are foreseeable."
Question put, That the paragraph be read a second
time.
The Committee divided:
Content, 3
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
| | Not Content, 4
Jean Corston MP
Lord Lester of Herne Hill
Lord Plant of Highfield
Mr Richard Shepherd MP
|
Paragraphs 165 to 171 read and agreed to.
Motion made, and Question put, to leave out paragraphs 172 to
176 and insert the following paragraph in their place:
"172. We conclude that the new clause 49
meets the UK's obligations under the ECHR, the CRC, the ICESCR
and the European Social Charter."—(Lord Lester
of Herne Hill.)
The Committee divided:
|
Content, 2
Lord Lester of Herne Hill
Lord Plant of Highfield
| | Not Content, 4
Jean Corston MP
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
|
A paragraph—(Lord Judd)—brought up and read
as follows:
"We therefore recommend that clause 49 of the Bill be
amended as follows:
Replace subsection (1) with the following new
subsection—
'(1) Reasonable chastisement is not a defence
to any charge involving battery of a child.'.
Leave out subsection (2).
In subsection (3), leave out the words 'causing
actual bodily harm to the child'.
Leave out subsection (4).".
Question put, That the paragraph be read a second
time.
The Committee divided:
|
Content, 4
Jean Corston MP
Lord Judd
Mr Kevin McNamara MP
Mr Paul Stinchcombe MP
| | Not Content, 3
Lord Lester of Herne Hill
Lord Plant of Highfield
Mr Richard Shepherd MP
|
Paragraph added (now paragraph 177).
Summary read as follows:
"In this Report, the Committee considers the
Children Bill as introduced to the House of Commons on 19 July
2004. It does so in the light of its earlier Report on the Bill
as introduced to the House of Lords, the Government's responses
to questions it raised in relation to that version, further oral
evidence taken from the Minister for Children, Young People and
the Family, the amendments made to the Bill by the House of Lords,
and its two Reports made in 2003 on The Case for a Children's
Commissioner for England and The UN Convention on the Rights of
the Child.
Part 1 of the Bill establishes the office of a Children's
Commissioner for England. The Committee concludes that, with some
relatively minor reservations, the Bill now provides a statutory
basis for a genuinely independent, rights-based, strategically-focused
commissioner for children and young people, and the framework
for an office which can help achieve the aim of making the interests
of the child a primary concern in the work of the agencies of
the state. It warmly welcomes this initiative.
Parts 2 and 3 of the Bill aim to strengthen the legal
framework for achieving better co-operation between agencies delivering
children's services. The Committee welcomes these provisions as
an advance in fulfilling the Government's important positive obligations
under Articles 2, 3 and 8 of the ECHR to take steps to protect
the lives of children, to protect them from inhuman and degrading
treatment, and to protect their physical integrity, but has concerns
about whether the duties are sufficiently robust to prevent future
breaches of those positive obligations.
The Committee recommends that the duty on "partner
agencies" to co-operate should be clarified to make quite
explicit that it is an ongoing duty.
It recommends that the duty imposed on agencies to
safeguard and promote the welfare of children should be strengthened
to make it a direct rather than a procedural duty. It further
recommends that this duty should be directly applied to private
bodies providing services to children under contract to public
authorities.
The Committee concludes that the exclusion of the
immigration and asylum agencies from these duties and arrangements
constitutes unjustifiable discrimination against some children
on grounds of nationality.
The Committee examines the implication for the right
of children to privacy of the provisions of the Bill relating
to information sharing by agencies. It expresses a number of concerns
about the compatibility of these provisions with Article 8 ECHR.
The Committee considers clause 49 of the Bill, restricting
the defence of reasonable chastisement, in the light of its conclusions
and recommendations reached in its 2003 Report on the UK's implementation
of the UN Convention on the Rights of the Child.
It concludes that, on balance, the amendment to the
law is likely to be considered sufficient to satisfy the UK's
obligations to comply with the judgment of the Court of Human
Rights in A v UK. However, it also concludes that, although
the continuing availability of the defence of reasonable chastisement
does not give rise to any present incompatibility with Convention
rights, there is a risk that it will in future be held to be incompatible
with the ECHR.
It concludes that the continuing availability of
the defence is incompatible with the UK's obligations under the
Convention on the Rights of the Child, and under other international
agreements.
It concludes that there is nothing in the UK's obligations
under the ECHR which prevents it from achieving full compatibility
with its obligations under the CRC and other international human
rights treaties.".
Amendment proposed, in line 3 of the ninth paragraph,
to leave out from "A v UK." to the end of the
Summary and add the following new paragraph:
"The effect of the amendment passed by the House
of Lords, in removing the defence of reasonable chastisement for
any abusive punishment of children without also outlawing reasonable
parental discipline, together with the new charging standards
to be issued by the Director of Public Prosecutions to prosecutors,
make English law compatible with the United Kingdom's obligations
under the European Convention on Human Rights and the Convention
on the Rights of the Child. The alternative amendment, supported
by the 'Children are Unbeatable Alliance'—a coalition of
NGOs dedicated to the welfare of children—but rejected by
the House of Lords, is not required to meet international human
rights law.".—(Lord Lester of Herne Hill.)
Question put, That the Amendment be made.
The Committee divided:
|
Content, 2
Lord Lester of Herne Hill
Lord Plant of Highfield
| | Not Content, 5
Jean Corston MP
Lord Judd
Mr Kevin McNamara MP
Mr Richard Shepherd MP
Mr Paul Stinchcombe MP
|
Summary agreed to.
Motion made, and Question proposed, That the Report be the Nineteenth
Report of the Committee to each House.—(The Chairman.)
Amendment proposed, after first "Report"
to insert, ", with the exception of paragraphs 118 to 177,".—(Mr
Richard Shepherd.)
Question put, That the Amendment be made.
The Committee divided:
|
Content, 2
Lord Lester of Herne Hill
Mr Richard Shepherd MP
| | Not Content, 5
Jean Corston MP
Lord Judd
Mr Kevin McNamara MP
Lord Plant of Highfield
Mr Paul Stinchcombe MP
|
Main Question put.
The Committee divided:
|
Content, 6
Jean Corston MP
Lord Judd
Lord Lester of Herne Hill
Mr Kevin McNamara MP
Lord Plant of Highfield
Mr Paul Stinchcombe MP
| | Not Content, 1
Mr Richard Shepherd MP
|
Resolved, That the Report be the Nineteenth Report of the
Committee to each House.
Ordered, That certain papers be appended to the Report.
Ordered, That the Chairman
do make the Report to the House of Commons and that Lord Judd
do make the Report to the House of Lords.
[Adjourned till Wednesday 20 October at a quarter
past Four o'clock.
168 See Appendix 6 Back
169
General measures of implementation of the Convention on the Rights
of the Child (arts. 4, 42 and 44), 27 November 2003, CRC/GC/2003/5,
(in relation to Article 2 CRC) Back
170
ibid., para. 26. Back
171
Saudi Arabia, Qatar, Kenya, Thailand, Italy, The Netherlands,
Algeria, Egypt, Tunisia, Germany, Republic of Korea, Argentina,
Paraguay, Burkina Faso, Brazil, Norway, Jamaica and Serbia and
Montenegro. Back
|
