Joint Committee On Human Rights Fourth Report

Appendix 5: Children Act

Government Response to the Joint Committee on Human Rights Nineteenth Report of Session 2003-04

The Select Committee's recommendations are in bold text.

The Government's response is in plain text (section numbers have been updated to reflect changes in the Act).

Some of the recommendations and responses have been grouped.

Children's Commissioner

12. [The JCHR] warmly welcome[s] the Government's decision to take action on [the establishment of a Children's Commissioner].

In turn, the Government has been heartened by the positive response to its proposals that have been voiced in both Houses by members of all parties. We are grateful for their constructive suggestions, a number of which we have taken up, and more generally for their thoughtful and stimulating contributions to the debate.

14. The Bill was amended in Committee by the Lords to provide that the Commissioner must have regard to the Convention. We welcome this amendment.

This amendment was accepted willingly by the Government in the Lords. The Government believes wholeheartedly that the UNCRC must inform the Commissioner's work and help to guide him when he makes a judgement about which issues to pursue. The Commissioner will therefore be considering children's rights in the discharge of his functions.

21. We conclude that it is unnecessary for the five outcomes listed in clause 2(3) of the Bill as originally introduced to be reinstated. If the Government feels they must, they should be clearly placed within the context of the CRC.

26. The version of clause 2 adopted by the Lords on 17 June gives the Commissioner a general function of "promoting and safeguarding the rights and interests of children". We broadly welcome this change. We recommend that the wording relating to the rights of children is retained, supplemented if need be by a general function relating to promoting awareness of the views and interests of children.

32. We do not consider it would be helpful, or necessary to emphasise the strategic role of the Commissioner, to reinstate the words of clause 2(6) of the Bill as originally introduced [in the House of Lords].

Section 2 of the Act as it left the Lords was amended in Committee to reflect more closely the original text introduced to the Lords. This included the restoration of the five "outcomes" as a focus for the Commissioner's general functions. They are now part of section 2(3). Changes in the House of Commons also deleted the reference to safeguarding rights and reintroduced "promoting awareness of the views and interests" to be part of the Commissioner's general function.

The outcomes featured in the Green Paper "Every Child Matters", which laid the foundations for the development of the Act. They were the result of a wide-ranging consultation by the Children and Young People's Unit between November 2001 and February 2002. Over 2,500 children contributed to the consultation and they were asked to comment on key aspects of their lives that were important to them. They should also not be seen in isolation as affecting the Commissioner's role but they form the basis of the change programme that "Every Child Matters" set out for children's services. They are designed to be the driver for what local authorities should achieve in terms of results and as such, form part of the duty to cooperate (section 10).

We believe that for the same reason, the outcomes should be the focus of the Commissioner's work. They cover the broad framework of what is important in the lives of children and express in practical terms, what we should aspire to achieve for all children. The outcomes are not an alternative to rights nor do they constrain the Commissioner's ability to look at any issue he thinks appropriate. But they do encourage him to focus on the pace and extent of progress we make as a society in improving children's lives.

We understand that the issue of rights is important in the lives of children and as previously stated, we believe without question, that the UNCRC must inform the Commissioner's work. However, the reason that the Government moved the deletion of the general function to "safeguard rights" was because we believe that the Commissioner should have a broader, more strategic role of promoting "awareness of the views and interests of children" (which of course could encompass rights if he so chooses). We believe that this strategic function allows the Commissioner the widest scope possible when looking at how he can confer the maximum benefit on the largest amount of children. We want him to be someone who works actively to promote children's safety and general well-being and have the freedom to consider or report on issues as he sees fit.

With regard to individual cases, part of his role will undoubtedly involve referring individual cases on to the appropriate body to deal with, which may of course be rights organisations. We do not intend the Commissioner to duplicate services that other services provide as we want to establish a new role that fills in the gap that currently exists in children's service provision. It is possible that the Commissioner, under his section 3 function, may hold an inquiry into an issue, where he believes that an individual case raises issues of public policy of relevance to other children. However, we have chosen to preserve the strategic function in section 2, which means that he can consider any issue which relates to children, without investigating an individual case. We do not want to run the risk of the Commissioner being inundated with hundreds of individual cases which he will not have time to consider and will detract him from his main work. We must stress that the Commissioner's role is primarily to listen to children and benefit the most that he can. By retaining this flexible strategic role, he will be able to do that.

30. The Government introduced a new clause on report in the House of Lords giving the Commissioner power to conduct investigations on his own initiative. We welcome this positive response.

The Government is pleased to note to Committee's approval of this new section. We listened carefully to points raised in debate in the House of Lords, concluded that the Commissioner's powers did need to be strengthened in such a way and were happy to table an amendment to achieve this.

36. The new version of clause 2 adopted by the Lords on 17 June incorporated a provision (now clause 2(6)) identical to that proposed by the Government which requires any person discharging statutory functions to disclose such information as the Commissioner may "reasonably request". We welcome this provision.

The Government notes the Committee's approval and hopes that this provision will serve the Commissioner—and the country's children—well when he is gathering information concerning the views and interests of children.

39. We consider that [the Commissioner's] "power of influence" would be enhanced if the power to make recommendations were made explicit on the face of the Bill, and we recommend the inclusion of such a provision.

We have recognised that there is a case to be made for giving any recommendations made by the Commissioner more effect and consequently inserted a new subsection in section 2 to provide for follow up action (a similar provision exists as part of section 3). If a report prepared by the Commissioner under section 2 contains recommendations in respect of a person exercising functions under any enactment, he can require that person to state in writing, within a reasonable period, what action the person has taken or proposes to take in response. The Government tabled the following new provision which was accepted by the Commons Committee and now the House of Lords—

Where the Children's Commissioner has published a report under this section [i.e. section 2] containing recommendations in respect of any person exercising functions under any enactment, he may require that person to state in writing, within such period as the Commissioner may reasonably require, what action the person has taken or proposes to take in response to the recommendations.

In moving the amendment, the Minister for Children, Young People and Families stressed that it was important that the Commissioner's recommendations should not disappear without trace. However, unlike in other amendments tabled on a similar theme, no set response time was laid down, as it was considered that this was best left to the Commissioner. Some recommendations might reasonably need a response time of as long as six months, others a much shorter period.

41. We recommend that the Commissioner be given the power to present reports directly to Parliament.

The Government agrees with the Committee that this is an issue of symbolic, rather than practical significance and can reassure the Committee that the procedure for laying the annual report before Parliament that we have set out in section 8 is standard practice for a Non-Departmental Public Body (NDPB), which is what the Commissioner's office will be. It is not an attempt to limit the Commissioner's independence - or an opportunity for the Secretary of State to alter the report. He would not be able to do this in any way and the profile of the report may even be raised by this procedure being followed. It is a practice followed by other organisations that are required to produce a formal public record of their work and are independent of the Government. The Commission for Racial Equality and the Independent Complaints Commission are two such examples. We have also provided that the Secretary of State must lay the report "as soon as possible", to allay concerns voiced in this House about potential Government procrastination. The only bodies reporting directly to Parliament that the Government was able to identify were the Electoral Commission and the National Audit Office. As these two bodies deal with the actual machinery of Government, they are clearly special cases.

45. We consider that conferring absolute privilege on all statements made by the Commissioner in his reports would give rise to a significant risk of incompatibility with Articles 6(1) and 8 ECHR, because it would be disproportionate to the legitimate aim of encouraging the free and frank disclosure of information to the Commissioner.

The Government has considered this matter carefully and has concluded that no change should be made regarding this matter. We believe that it is vital that the Children's Commissioner be free to do this job without the fear of an action for defamation, and considers that the Act strikes a fair balance between achieving that objective and the rights of the subject of one of his reports. In addition, the Children's Commissioner would have to conduct his inquiries fairly and in accordance with the principles of public law.

The Government is therefore satisfied that any interference with the Convention rights caused by the granting of absolute privilege to statements made by the Children's Commissioner in reports published under Part 1 is justified and proportionate.

47. We recommend that [the power of direction in clause 5] be amended to enable the Secretary of State to request the Commissioner to undertake such an inquiry and to make his request public. If the Commissioner declines to act on the request, he or she should be required to publish reasons for that decision.

The Government does not consider that the power of direction which is now in section 4, in any way interferes with his independence from Government, as we affirmed in both Houses of Parliament. Subsequent to the addition of what is now section 3 permitting the Commissioner to undertake inquiries on his own initiative in certain circumstances, we envisage that a section 4 direction to undertake an inquiry will be a very rare event.

We have, however, retained the power because we consider that there could be cases where it would be appropriate for the Secretary of State to launch an inquiry, such as where a serious systemic failure had been revealed. In such cases he has ordered an inquiry in the past, and has entrusted it to a person he thought suitable for the task. In the future, that person might well be the Children's Commissioner who, we hope, will quickly build up a wealth of experience and background knowledge as part of carrying out his other section 2 and section 3 functions.

In practice, before using this power the Secretary of State would certainly first discuss the matter with the Commissioner and listen very carefully to any views he might express, including the effect of such an inquiry on his budget and on time available for other duties. We would not, however, see that it would be necessary to make these discussions public.

48. We recommend that the Commissioner's appointment should be non-renewable, and for a period of no fewer than five and no more than seven years.

The Government does not agree with this recommendation. We do not consider that a renewable contract would in practice undermine the independence of a good Commissioner.

The Secretary of State can dismiss at any time a Commissioner who is unfit or unable properly to discharge his functions, or who acts in a way unworthy of his office. These are clearly necessary requirements for a post of such responsibility, dealing with some of the most vulnerable members of society. Although the utmost care will be taken in the selection of the Commissioner, the possibility could arise that a Commissioner were appointed who, while fit for his office and behaving with all due propriety, was in practice underperforming or was in some other way unsuitable.

However, we should remember that it will take time for the Commissioner to build up knowledge and expertise. Limiting his term of office to a single contract of five or seven years could mean that a good person had to move on prematurely. For that reason, the Government prefers to maintain the existing arrangement of a five year contract renewable for a further five years.

55. We recommend that the office be called the Commissioner for Children and Young People.

The Government understands the thrust of the Committee's argument, but there are a number of factors to be considered here.

It is true that a number of older teenagers, although still under 18, do not care to be described as "children", and would prefer the term "young people". It is also true that a number of young adults under 21 with special difficulties have now been included in the scope of the Commissioner's functions.

However, the term "young people" is broad in definition and may possibly be open to misunderstanding by the public. Some would apply it to teenagers, some to people under 21 and some to people under 25. This could, therefore, possibly lead to confusion as to who was included in the Commissioner's remit. The term "Children's Commissioner", incorporates all people under 18 and two small, well-defined groups of older people who continue to receive children's services after the age of 18.

Duty to Co-operate to improve well-being

68. We recommend that the Government's intention that there should be an ongoing duty on partner agencies to co-operate should be made explicit on the face of legislation, or at the very least, in the Secretary of State's guidance issued under Clause 7(8).

We agree that there should be an ongoing duty on partner agencies to co-operate. This will be clear in statutory guidance issued under section 10.

The "safeguarding and promoting welfare" duty

77. We recommend that Clause 8 be amended so as to give effect to what the Minister clearly stated is the intention of the clause. In other words it should impose an express direct duty on children's services authorities and other key agencies to promote and safeguard the welfare of children, or explicitly require that the best interests of the child be treated as a primary consideration in the discharge of their functions.

It is extremely important that we recognise that the agencies to which the section 11 duty will apply all have important roles within society. In drafting the section 11 duty we have taken the utmost care to ensure that it does not change the role of any of these agencies, as to do so could have severe and unexpected consequences. Instead we have chosen wording which will change the way agencies carry out their existing role so that this supports the need to safeguard and promote the welfare of children as opposed to undermining it.

We must remember that there is already a robust legislative framework for safeguarding and promoting the welfare of such children. Local authorities, acting in order to fulfil their social services functions, have specific legal duties in respect of children under the Children Act 1989. They have a general duty to safeguard and promote the welfare of children in their area who are in need, including those in need of protection. Other local authority services, including education and housing services, and health services have a duty to assist social services in carrying out these functions.

The police have a legal duty to investigate criminal offences committed against children, and such investigations should be carried out sensitively, thoroughly and professionally. In addition the Children Act 1989 gives the police powers to take emergency action to protect children from suffering significant harm.

We have published detailed information about the roles and responsibilities of these and other agencies in relation to safeguarding and promoting the welfare of children in "Working Together to Safeguard Children" and the "Framework for the Assessment of Children in Need and their Families".

The duty at section 11 will add to this framework for safeguarding and promoting the welfare of vulnerable children, by ensuring that all agencies listed at section 11(1) take a proactive approach in responding to the needs of all children.

The JCHR has expressed some concern about the phrase "make arrangements". We have chosen this language because it will ensure that local authorities must take action. They must be able to show that they have put arrangements in place to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children. The guidance which we will issue under section 11 will set out what each agency should do to in order to meet the duty, e.g. ensure staff are trained in safeguarding and promoting the welfare of children, agree lines of accountability for safeguarding and promoting the welfare of children, etc. The guidance will build on and promote good practice based on clear evidence about the processes that deliver good outcomes for children.

85. We consider that there is no justification for adopting an approach to private contractors in the Children Bill which is inferior to that in the Human Rights Act. We recommend that the Bill should be amended in order to make clear that the duty to safeguard and promote the welfare of children applies to both public authorities and private contractors discharging their functions on the public authorities' behalf.

The section 11 duty sits alongside the Human Rights Act. It does not detract from it. The section 11 duty is phrased differently as it is focused on effecting change in particular organisations with particular functions. The accountability for ensuring these functions are exercised having regard to the need to safeguard and promote the welfare of children must ultimately lie with the body which has been given the function by statute. In relation to safeguarding and promoting welfare, all the evidence shows that having a clear line of accountability is key. Agencies must not be able to deflect responsibility. In any case, the section 11 duty will not interfere with any duties private contractors have under the Human Rights Act.

We think that in contracting with an external body to provide a particular service, it would be reasonable for an agency to ensure that the contract made clear that the service would need to be provided having regard to the need to safeguard and promote the welfare of children. The agency will then be responsible to monitor performance against this requirement as part of its general contract-monitoring arrangements.

Exclusion of immigration/asylum agencies

92. We are not persuaded that there is a justification for excluding immigration and asylum agencies from the scope of the duty to co-operate in Clause 10 or from automatic membership of Local Safeguarding Children Boards under clause 13. We consider that these omissions should be remedied in order to ensure equal treatment for asylum-seeking children.

94. We find it impossible to avoid the conclusion that the Government's position is that the welfare of asylum-seeking children is secondary to the need to maintain effective immigration control.

95. We recommended in that report that the Government demonstrate its commitment to the equal treatment of all children by withdrawing its reservation to the CRC relating to immigration and nationality. We are disappointed that not only has the Government failed to act on this recommendation, but it now seeks to rely on that reservation to justify further differential treatment of asylum-seeking children in new legislative measures.

97. We conclude that the exclusion of immigration/asylum agencies from the scope of the new duties and arrangements is unjustifiable discrimination against such children on grounds of nationality.

The children of asylum seekers and refugees are not excluded under the Part 2 arrangements. The arrangements under sections 10 (co-operation to improve well-being), 11 (arrangements to safeguard and promote welfare) and 13-16 (Local Safeguarding Children Boards) of the Act are intended to cover all children. This includes those seeking asylum or refugees, when they come into contact with the agencies involved in the arrangements or more generally through the focus of the section 10 co-operation arrangements on all children.

Section 10 is about co-operation to improve well-being. The arrangements under this section have been designed with the intention of ensuring that the bodies with responsibility for strategic decision making and the commissioning of services at a local level are covered. The IS and NASS do not fulfil the criteria required for partnership under this duty and to include them would be inconsistent with the design of the co-operation arrangements, confusing their focus. However, the IS and NASS will still work closely with all agencies involved with children and young people, where appropriate.

Both NASS and the Immigration Service recognise the importance of Local Safeguarding Children Boards, and will be fully involved in the Board where this is appropriate. However, we do not think it is necessary or appropriate for either the IS or the NASS to be required to be represented as core members on all LSCBs. Immigration issues tend, by their nature, to be geographically focused. We therefore believe that it would be better for these organisations to be co-opted onto the LSCB in areas where such issues are important and relevant, for example Hillingdon or Kent, rather than being required to sit on all boards. We will ensure that the involvement of NASS and the Immigration Service in relevant areas is fully covered by the guidance that will be issued on the establishment and operation of the new boards.

The Immigration and Nationality Directorate, which includes both NASS and the IS, takes its responsibilities towards children very seriously and fully appreciates the importance of identifying vulnerable children. For this reason the Government has carefully considered the arguments for being listed under section 11.

The Government's view is that adequate safeguards for children are in place and that if a statutory duty were placed on these individuals and agency it may give greater potential for legal challenge undermining an effective immigration control and draining public funds. It could also lead to the Immigration system being exploited by those seeking to secure admission to, and residence in, the UK. The need for a specific duty has to be balanced against the need to maintain an effective immigration control.

The concern of NASS and the IS towards children in its care, though, can be viewed through the actions they have taken in accordance with the spirit of the duty. Both NASS and the IS have well established working arrangements with local authorities and other agencies so that concerns are swiftly dealt with.

While the IS has traditionally worked in partnership with local authorities and the police to ensure that any concerns about a child are acted upon, it has been working to improve these good working relations with local authorities and other agencies in a number of ways including:

o A single point of contact has been established for all local authorities and social workers who want to clarify the immigration status of a child.

o New instructions have been issued to caseworkers to ensure that the necessary steps are taken to engage social services at an early stage in any case involving a child where there is cause for concern.

o Best Practice guidance has been developed and distributed to all UK ports of entry. This gives clear guidance on the procedures to be followed when immigration officers encounter children, especially those who may be at risk. Courses have also been developed and have been running since November 2003 with the aim of training 10% of operational staff and ensuring full time coverage at all ports of entry.

Information Sharing

108. We welcome the Government's acceptance of the need for more detail in the face of the Bill and its willingness to introduce amendments responding to the concerns raised. However, we continue to have a number of concerns about the compatibility of the proposed database with Article 8 ECHR.

The Government welcomes the Committee's comments on our amendments to put more detail on the face of the Act. We believe that we now have a firm and unequivocal legal framework within the Act in order to pursue our development work to establish databases to aid practitioners on their work to help ensure that all children get the services they need at the earliest possible stage. By facilitating discussion before crisis point is reached the databases will support our preventative agenda.

109. We remain concerned about the lack of detail contained on the face of the Bill and the breadth of regulation-making powers being conferred on the Secretary of State in a context involving serious interferences with Article 8 rights.

The Government believes that the proper place to address the more detailed aspects of database operation is in regulations [and guidance]. In developing the regulations, it will be important that we respond to the issues raised in response to the consultation on sensitive services and the recording of concerns, continue to learn from the work of the trailblazers, and also take into account the many helpful comments raised in both Houses during the passage of the Act. Both Houses will have the opportunity to contribute fully when the regulations come before Parliament under the affirmative resolution procedure.

113. We are concerned that, if the justification for information-sharing about children is that it [ie universal coverage] is always proportionate where the purpose is to identify children who need welfare services, there is no meaningful content left to a child's Article 8 right to privacy and confidentiality in their personal information.

As the Committee states, interference with Article 8 rights must go no further than is necessary for the pursuit of the legitimate aim. The key factor is proportionality: whether the proposed disclosure is a proportionate response to the need to protect the welfare of the child. The type and amount of information on the databases will be stringently restricted with no case information recorded. Where children are not receiving targeted or specialist services, the information held will be limited to basic identifying information and details of their educational setting and primary health care practice. This is proportionate to the Government's aim of ensuring that these universal services are not being missed. The Committee is right to stress the importance of ensuring that the regulations and guidance enable practitioners to share information in a way that does not interfere disproportionately with Article 8 rights. The Government is committed to achieving this.

114. The information which may be included on the database about a child goes beyond purely objective facts about a child …. It includes information … which may reveal very sensitive information about a child, such as the fact that a seventeen year old girl has been referred to family planning services. It also includes 'the existence of any cause for concern' about a child, which is an extremely subjective and open-ended phrase which is almost bound to include very sensitive information about a child.

The Government is pleased to see that the Committee has welcomed our amendment of the Act to make clear that regulations cannot provide for medical records or other personal records to be included on the database. The Committee has also welcomed our commitment to deal carefully with these very important issues relating to sensitive services and with concerns. The Committee may be aware that on 27 October we launched a formal consultation on these two particular issues to which the Committee has drawn attention. Copies of the document have been placed in the Libraries.

We acknowledge that certain organisations working with children or young people deal with extremely sensitive issues, particularly those relating to sexual health, contraception, HIV, abortion and substance misuse, mental health and youth offending. There are important considerations here around confidentiality and consent. We must not deter children and young people from taking up the services they need.

Our consultation is seeking the best way forward in framing the regulations on recording practitioner details in relation to potentially sensitive services. The document considers how far the inclusion of such information, and the determination of who might see it, should be subject to the consent of the child, young person or parents. We have outlined a range of options on which we are seeking the views of children and young people themselves, as well as practitioners and other key stakeholders. As we have set out in the consultation document, our initial view is that, for targeted and specialist services, including practitioner involvement without consent should only occur in exceptional circumstances. We shall draw up draft regulations on this matter after we have fully considered the views we receive during the consultation period. As a matter of course we shall consult the JCHR in preparing the regulations.

116. We welcome the Government's acceptance of the need for comprehensive statutory guidance on information sharing.

The Act's provisions on section 10 duty to co-operate to improve well-being and section 11 duty to make arrangement to safeguard and promote welfare imply a duty to share information The implied duties in sections 10 and 11 give us the opportunity make clear in statutory guidance that organisations must put in place arrangements to ensure effective information sharing in fulfilling these duties. In that guidance and national standards and exemplar material to support it, we will improve understanding of what organisations need do to make information sharing work.

Guidance and directions will support the Regulations made under section 12 of the Act on how the databases should operate.

We are aware that often practitioners do not feel confident about when they may share information appropriately under existing law. We also intend to produce new comprehensive guidance on information sharing [endorsed by the other relevant Government Departments] for practitioners across services to children and young people, on information sharing, covering education, health, social care, and youth offending.

Reasonable Chastisement

137. We conclude that the combination of the new clause and the new charging standard may well be considered sufficient to satisfy the UK's obligation to comply with the judgment of the European Court of Human Rights in A v UK, because it make the defence unavailable in relation to treatment or punishment which is contrary to Article 3.

141. 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.

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.

161. We conclude that, although clause 49 achieves a greater degree of compatibility with the UK's obligations under the CRC by restricting the scope of the reasonable chastisement defence, by preserving it as a defence to common assault it does not achieve full compatibility with the UK's obligations under the CRC as interpreted by the UN Committee on the Rights of the Child, or under the ICESCR, as interpreted by the Committee on Economic, Social and Cultural Rights, or under the European Social Charter, as interpreted by the European Committee of Social Rights.

166. We are not persuaded either that a complete prohibition of corporal punishment fails to provide a reasonable degree of legal certainty, or that new clause 49 provides any greater degree of legal certainty.

169. We therefore do not agree that abolishing the defence of reasonable chastisement offends the principle of legal certainty.

171. There is in our view no reason rooted in considerations of legal certainty which should prevent implementation of the recommendation of the Committee on the Rights of the Child that the reasonable chastisement defence be abolished.

175. There is therefore in our view no reason rooted in considerations of disproportionate interference with family life which should prevent implementation of the recommendation of the Committee on the Rights of the Child that the reasonable chastisement defence be abolished.

176. We have considered whether there is any conflict between the UK's obligations under the CRC, ICESCR and European Social Charter on the one hand and its obligations under the ECHR on the other which would prevent it from complying with the recommendation of the CRC Committee with regard to the corporal punishment of children. We conclude that there is not.

177. 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).

The Government is absolutely opposed to violence and abuse against children. The law only allows the defence of reasonable chastisement to be used in the most minor cases—it does not permit child abuse. In line with the position on ECHR, the Government believes our law would not breach the UK's obligations under the UN Convention on the Rights of the Child, which respects contracting states' rights to retain their own national systems and legal rules.

Section 58 restricts the circumstances in which parents can plead in their defence that what would otherwise be a common assault on their child was "reasonable punishment". The defence will no longer be available at all in cases charged as assault occasioning actual bodily harm, or worse. In framing charges the prosecutor will be required to look at each case with regard to the individual circumstances of alleged perpetrator and victim (e.g. disparity between adult and child).

I support the Government commitment not to impose a blanket ban on smacking, which the House of Commons voted overwhelmingly against. Such a ban would be difficult to implement, would divert valuable police and social services resources and could lead to inappropriate criminalisation of parents.

6 December 2004

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