Domestic Violence
145. The CESCR's concluding observations expressed
concern at the high incidence of domestic violence[214]
and recommended that the Government continue its efforts to combat
the problem.[215] The
Committee on the Administration of Justice (CAJ) point out in
their written evidence that the incidence of domestic violence
in Northern Ireland is particularly high.[216]
146. Since the concluding observations were issued,
the Domestic Violence, Crime and Victims Bill has been introduced.
The Bill contains proposals to strengthen legislative protection
against domestic violence, and includes measures to ensure that
prosecutions can be taken. In our reports on the Bill, we have
pointed to the progress the Bill makes in protecting family life
rights under Article 8 ECHR, and in ensuring against discrimination
in the protection of family life rights (under Article 8 and Article
14 ECHR) by extending protection against domestic violence to
those in non-traditional family relationships.[217]
This provision of the Bill should also assist in the equal protection
of rights under Article 10 ICESCR. In our Report, we also drew
attention to the creation of a new offence of causing or allowing
the death of a child or vulnerable adult, which applies where
someone living in the household as a child or other vulnerable
person either causes their death directly, or fails to take reasonable
steps to protect them against a significant risk of physical harm
resulting from the actions of another member of the household.[218]
We pointed to the capacity of the new offence to protect the right
to life.[219] We
welcome the measures in the Domestic Violence Bill designed to
enhance protection against domestic violence, in particular violence
against children.
Physical punishment of children
147. The CESCR recommended that the physical punishment
of children should be prohibited, in light of Article 10.1 and
10.3 of the Covenant, which accord special protection to the family,
and to children and young persons. We considered the physical
punishment of children in our report on the Convention on the
Rights of the Child,[220]
following the recommendation of the UN Committee on the Rights
of the Child that "reasonable chastisement" should be
abolished as a defence to a charge of assault on a child.[221]
We also took into consideration the decision of the European Court
of Human Rights in A v UK,[222]
which found a breach of the freedom from inhuman or degrading
treatment (Article 3 ECHR) in a case where the defence of reasonable
chastisement had been successfully invoked. In our report on the
Convention on the Rights of the Child we concluded that retention
of the defence of reasonable chastisement was incompatible with
the government's obligations under the Convention on the Rights
of the Child.[223]
148. More recently, in relation to the Children Bill
currently before Parliament, we expressed concern that the government's
failure to remove the defence of reasonable chastisement meant
that the decision of the ECtHR in A v UK had not been satisfactorily
implemented.[224] At
report stage the House of Lords amended the Bill to include a
new provision restricting the availability of the reasonable chastisement
defence but not abolishing it altogether.[225]
The amendment removes the availability of reasonable chastisement
as a defence to the offences of wounding and causing grievous
bodily harm,[226] assault
occasioning actual bodily harm,[227]
and cruelty to persons under 16. It leaves the defence available
to a charge of common assault. In our further report on the
Children Bill we concluded that whilst the restriction of the
reasonable chastisement defence proposed by the amendments introduced
in the House of Lords was likely to satisfy Article 3 ECHR as
currently interpreted by the European Court of Human Rights, and
went some way towards achieving compatibility with the Convention
on the Rights of the Child (CRC), it did not fully meet the CRC
obligation, as interpreted by the UN Committee on the Rights of
the Child, or the obligation under the ICESCR, as interpreted
by the Committee on Economic, Social and Cultural Rights. We reiterate
that conclusion here.
214 Concluding Observations, para. 17 Back
215
ibid., para. 35 Back
216
Appendix 9 Back
217
Clause 1 of the Bill. Third report, Session 2003-04, Scrutiny
of Bills: Progress Report, HL Paper 23, HC 252, para. 2.5 Back
218
Clause 4 of the Bill. Third report, Session 2003-04, op cit, para.
2.7 Back
219
ibid Back
220
Tenth Report, Session 2002-03, The UN Convention on the Rights
of the Child, op cit Back
221
Committee on the Rights of the Child, Concluding Observations
on the UK, October 2002 Back
222
(1999) 27 EHRR 611 Back
223
Tenth Report, Session 2002-03, The UN Convention on the Rights
of the Child, op cit., para. 111 Back
224
Twelfth Report, Session 2003-04, Scrutiny of Bills: Fifth Progress
Report, HL Paper 93, HC 603, paras 1.32-1.34 Back
225
New clause 49.The amendment was carried by 226 votes to 91. Back
226
Under ss. 18 and 20 Offences against the Person Act 1861 ("OAPA
1861") (new clause 49(2)(a)). Back
227
Under s. 47 OAPA 1861 (new clause 49(2)(b)). Back