Joint Committee On Human Rights Twenty-First Report


9 Family life rights

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


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2004
Prepared 2 November 2004