Joint Committee On Human Rights Nineteenth Report


4. Memorandum from Allan Levy QC and Peter Newell

Allan Levy QC specialises in child law and human rights law and represented "A" before the European Court of Human Rights in the case of "A v UK". Peter Newell is the Coordinator of the "Children are unbeatable! "Alliance

"REASONABLE PUNISHMENT" NEW CLAUSENOW CLAUSE 49 OF THE CHILDREN BILL

1. In our (Children are unbeatable! Alliance) submission to the Joint Committee dated May 27, we referred to the proposal to abolish the use of the defence of lawful punishment in relation to the more serious offences of violence, leaving it intact in relation to common assault. We argued that such a limited change in the law would not meet the UK's human rights obligations. This proposal, which originated from the Attorney General and was referred to by the Director of Public Prosecutions in his evidence to the Joint Committee, now forms part of the Children Bill (clause 49).

2. The purpose of this additional submission is to re-emphasise that allowing parents to continue to use the defence in relation to a charge of common assault, as clause 49 does, cannot meet the UK's obligations under international human rights instruments including the UN Convention on the Rights of the Child (see articles 19 and 37(a)), the International Covenant on Civil and Political Rights (see articles 7, 24 and 26) and the European Social Charter (see article 17).

3. In practice, clause 49 will change little. It should be noted that over recent months, Ministers have repeatedly assured Peers that: "The kind of punishment that results in injury is clearly not reasonable chastisement and as such is already against the law" (eg, Baroness Ashton, House of Lords, 20 May 2004, col. 910). Certainly, it is inconceivable that any court would accept the use of the defence nowadays in relation to offences of wounding or grievous bodily harm and most unlikely that any court would accept use of the defence in relation to offences of actual bodily harm or of cruelty (the latter is not normally used in cases of physical assault).

4. Media coverage since the House of Lords debate and vote on July 5 has already effectively demonstrated the confusion that would be caused by the partial removal of the defence, and has also underlined that the basic message transmitted by the change is "carry on smacking".

5. The current Charging Standard for offences against the person states that common assault will be the appropriate charge "where injuries amount to no more than the following: grazes, scratches, abrasions, minor bruising and swellings, reddening of the skin, superficial cuts or a black eye". During the July 5 debate the Attorney General informed the House of changes to the Standard which he had been advised the Director of Public Prosecutions intended to make: "The revised Charging Standard will include guidance that where serious aggravating features exist, cases in which the level of injuries would usually lead to a charge of common assault, could more appropriately be charged as actual bodily harm. Such serious aggravating features would include the vulnerability of the victim, such as when they are a child assaulted by an adult. The effect of that pending change is that even minor assaults by a parent on a child, where grazes, scratches, abrasions, minor bruising, swelling, superficial cuts or a black eye are caused, will normally be charged as assault occasioning actual bodily harm". He added that "reddening of the skin where it is merely transitory will usually still be charged as common assault. That is because the definition of 'actual bodily harm' requires the injury to be more than transient. Where the reddening subsists for hours or days, that may suggest a charge of actual bodily harm".

6. One of the arguments raised in support of clause 49 in the House of Lords was the need to provide parents with sufficient legal certainty about what is and is not permissible. The above explanation by the Attorney General can hardly be described as adding to legal certainty. The other new clause tabled and debated in the House of Lords provided that battery of a child could no longer be justified as lawful punishment. It also provided appropriate reassurances confirming parents' rights to use reasonable force to protect their child and others and property and to prevent the commission of a crime, etc. This clause placed child victims of battery in the same position as adult victims of battery. So parents would be faced with the same legal certainty about the legality of their actions as any other person contemplating battery of another. Nobody has suggested that there is inadequate legal certainty in the law on offences against the person as it applies to assaults between adults. As the DPP made clear in his evidence to the Joint Committee, prosecutions for minor assaults on adults are very rare and he suspected that prosecutions for minor assaults of children would also be—although they could not be ruled out given the greater vulnerability of children. The DPP also referred to the de minimis principle.

7. It is plain that there is no additional legal uncertainty introduced by removing the defence of lawful punishment from offences of battery. On the other hand, clause 49 coupled with the proposed change in the Charging Standard outlined by the Attorney General appears to increase legal uncertainty considerably.

CLAUSE 49 AND EXECUTION OF A V UK JUDGMENT

8. The case of A v UK ([1998] 2 FLR 959;(1999) 27 EHRR 61) originated in a judgment of an English court ten years ago, in 1994. In that case, a stepfather used the defence of lawful punishment in relation to a charge of "actual bodily harm", having admitted beating his stepson with a garden cane causing bruising. The Court judgment found the punishment breached Article 3 of the ECHR and that the UK was responsible because domestic law—the defence of "reasonable chastisement"—failed to provide adequate protection including "effective deterrence".

9. Removing use of the defence in cases of "actual bodily harm"—the charge used in the case of "A"—and leaving it intact in relation to charges of common assault, as clause 49 does, does not provide the "effective deterrence" required to execute the judgment. From the Attorney General's summary of the revision of the Charging Standard it appears uncertain whether cases involving bruising will be charged as common assault (defence still applicable) or actual bodily harm (no defence available); in any case the Charging Standard is not part of the law and does not fetter the ultimate discretion of a prosecutor to apply the tests in the Code.

10. Clause 49 sends a clear message to parents that it is lawful to go on hitting children; it sends a confusing message about how and how hard children can lawfully be hit. These messages certainly do not add up to "effective deterrence". The media have reflected and added to the confusion in their coverage of the implications of clause 49. The clause enables, if not encourages, parents to find ways of hitting their children that leave no or little mark, although the risk of serious injury may be as great or greater than hitting in a way which leaves marks. It leaves the problem of "risk of injury" untouched: parents who shake children or hit them on the head may not cause any bruise or other injury—but they are risking serious injury.

CLAUSE 49 AND THE DEVELOPING JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

11. The European Court refers to the European Convention as a "living instrument", whose interpretation develops with time and changes in attitudes and practice. It is quite clear that in 2004, clause 49 would not be found to provide adequate protection for children. Eleven years ago, in the case of Costello-Roberts v UK, the Court found that the corporal punishment of a boy, hit three times with a soft-soled shoe on his clothed buttocks leaving no mark or bruising was "at or near the borderline" of breaching Article 3 (Costello-Roberts v UK (1995) 19 EHRR 112, ECrtHR). Six years ago, the European Court in its "A v UK" judgment referred to Article 19 of the UN Convention on the Rights of the Child (UNCRC) which requires protection from "all forms of physical or mental violence". Last year, the Court stated that: "The human rights of children and the standards to which all governments must aspire in realising these rights for all children are set out in the Convention on the Rights of the Child." (Sahin v Germany, [2003] 2 FLR 671, at 680, paragraph 39, ECrtHR, Grand Chamber).

CLAUSE 49 AND THE UN CONVENTION ON THE RIGHTS OF THE CHILD

12. Because of its almost universal ratification by 191 states, the UNCRC has acquired the status of customary international law. The Committee on the Rights of the Child, highest authority for interpretation of the Convention, has consistently held that the Convention requires prohibition of all corporal punishment, however light. It has confirmed this in concluding observations to more than 120 states in all continents, in its General Comment No. 1 on "The aims of education" (HRI/GEN/l/Rev.5, April 2001) and in the conclusions of its day of General Discussion on violence against children in the family and in schools, held in 2001, when it stated: "The Committee urges States Parties to enact or repeal, as a matter of urgency, their legislation in order to prohibit all forms of violence, however light, within the family and in schools, including as a form of discipline, as required by the provisions of the Convention and in particular articles 19, 28 and 37(a) and taking into account articles 2, 3, 6 and 12 as well as 4, 5, 9, 18, 24, 27, 29 and 39." (CRC/C/l 11, para. 715, September 2001)

13. When the Committee examined the UK's second periodic report in 2002, it concluded: "The Committee is of the opinion that governmental proposals to limit rather than to remove the 'reasonable chastisement' defence do not comply with the principles and provisions of the Convention and the aforementioned recommendations, particularly since they constitute a serious violation of the dignity of the child ... Moreover, they suggest that some forms of corporal punishment are acceptable and therefore undermine educational measures to promote positive and non-violent discipline." (CRC/C/15/Add.188, 4 October 2002)

14. It could hardly be clearer that clause 49 is not in compliance with the UNCRC.

OTHER HUMAN RIGHTS TREATY BODIES

15. The Committee on Economic, Social and Cultural Rights also called for prohibition of all corporal punishment in the family when it examined the UK's fourth periodic report under the International Covenant on Economic, Social and Cultural Rights in 2002 (E/C.12/l/Add.79, 17 May 2002). Earlier this year, a third treaty body, the Committee against Torture, added its voice to the Committee on the Rights of the Child in calling for prohibition of corporal punishment in the family, when it examined New Zealand's third periodic report under the Convention against torture, etc (CAT/C/CR132/4, 19 May 2004).

THE UNIVERSAL DECLARATION AND INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: THE PRINCIPLE OF EQUAL PROTECTION UNDER THE LAW

16. It should be emphasised in addition that both the Universal Declaration of Human Rights (article 7) and the International Covenant on Civil and Political Rights (article 26) guarantee "everyone's" right to equal protection under the law.

EUROPEAN SOCIAL CHARTER AND EUROPEAN COMMITTEE OF SOCIAL RIGHTS

17. The European Committee of Social Rights, in a 2001 general observation, stated that article 17 of the European Social Charter "requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. [The Committee] furthermore considers that any other form of degrading punishment or treatment of children must be prohibited in legislation and combined with adequate sanctions in penal or civil law." (ECSR, Conclusions XV 2, Volume 1, General Introduction, 2001)

18. The observation notes that "The Committee does not find it acceptable that a society which prohibits any form of physical violence between adults would accept that adults subject children to physical violence."

19. Since issuing the observation, the Committee has been systematically reviewing the legal status of corporal punishment in the 45 member-states of the Council of Europe. Since February 2003 it has told five countries—Poland, France, Slovak Republic, Romania and Slovenia—that they are not in conformity because all corporal punishment, including in the family, is not effectively prohibited (in June 2004 a law prohibiting all corporal punishment passed both chambers of the Romanian Parliament; it will come into force in January 2005). In its Conclusions on the UK's most recent report on implementation of article 17, the Committee notes that "not all forms of corporal punishment are prohibited within the family. The Committee refers to its general observations on Article 17 in the General Introduction and decides to defer its conclusion on this point pending more information from the British Government on the situation and on its intentions in this regard ..."

20. Collective complaints have been made under the Social Charter against five other countries on the grounds that they have not effectively prohibited all corporal punishment in the family (Ireland, Greece, Italy, Belgium and Portugal; complaints nos. 17-21/2003; details at http://www.coe.int/T/E/Human_Rights/Esc/5_Collective_complaints). These were declared admissible in December 2003 (as yet, only 13 of the 45 member states of the Council of Europe, not including the UK, have accepted the collective complaints procedure).

PARLIAMENTARY ASSEMBLY OF COUNCIL OF EUROPE RECOMMENDATION

21. The Parliamentary Assembly of the Council of Europe adopted a detailed recommendation on 24 June 2004, with overwhelming support, calling for a "coordinated and concerted campaign in all the member states for the total abolition of corporal punishment of children" (Recommendation 1666/2004). The recommendation "notes the success of the Council of Europe in abolishing the death penalty and the Assembly now calls on it to make Europe, as soon as possible, a corporal punishment-free zone for children".

22. The Parliamentary Assembly notes the established human rights standards in the Convention on the Rights of the Child and the European Social Charter which require prohibition of all corporal punishment: "The Assembly considers that any corporal punishment of children is in breach of their fundamental rights to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. Striking a human being is prohibited in European society and children are human beings. The social and legal acceptance of corporal punishment of children must be ended".

23. It should be noted that at least 12 member states of the Council of Europe have prohibited all corporal punishment. In these countries any defences justifying some level of violent punishment by parents have been repealed, so that the law on assault applies equally to punitive assaults of children. Many of these countries have gone on to insert an explicit prohibition of corporal punishment in their civil law. For example: in Sweden the criminal law provision excusing parents who caused minor injuries through physical punishment was removed in 1957. Sweden went on to add an explicit prohibition of all corporal punishment to its Parenthood and Guardianship Code in 1979; in 1969 in Finland the criminal law on assault was amended to remove a provision stating that a petty assault was not punishable if committed by parents or others exercising their lawful right to chastise a child (Finland went on to explicitly prohibit corporal punishment in its Child Custody and Rights of Access Act 1983); in Norway, a similar provision was removed from the criminal code in 1972 (explicit prohibition followed in 1987).

CONCLUSION

24. It seems extraordinary that any serious commentator could suggest that clause 49 satisfies our human rights obligations under international and European human rights instruments.

25. We hope that the Joint Committee will re-emphasise its recommendation that retention of the "reasonable chastisement" defence is incompatible with the UK's human rights obligations and that the Children Bill presents an obvious opportunity for law reform to remedy this breach and to provide children with equal protection under the law on assault.

14 July 2004


 
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