CORPORAL PUNISHMENT OF CHILDREN
(A V UK)
72. In our last two reports, we have commented
on the case of A v UK, one of the longest standing judgments
against the United Kingdom subject to the supervision of the Committee
of Ministers. In this case, the European Court of Human Rights
held that the defence of reasonable chastisement, which provided
certain adults with a defence against actual bodily harm (ABH)
of a child, was in breach of the right of children to be free
from inhuman or degrading treatment and punishment (as guaranteed
by Article 3 ECHR).[84]
It is the Government's view that this breach has been remedied.
The law has been changed to limit the defence of reasonable punishment
in cases involving allegations of common assault, a lesser charge
than ABH. The Government's view is that this defence, together
with Charging Guidance issued by the CPS on the distinction between
common assault and ABH is adequate to provide an effective deterrent
against future breaches of the rights of children under Article
3 ECHR. Our predecessor Committee concluded that after the introduction
of this, more limited, defence in Section 58 Children Act 2004,
there would be "no present incompatibility" with Article
3 ECHR. However, in that Report, our predecessor Committee also
concluded that the compromise in Section 58 was likely to be incompatible
with the requirements of the UN Convention on the Rights of the
Child as interpreted by the Committee on the Rights of the Child.[85]
Against this background, it observed that "there is a risk
that in a future case the ECtHR 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 the
grounds of their age."[86]
73. In our last Report we repeated our conclusion
that, although, in principle Section 58 Children Act 2004 may
provide a remedy for the breach identified in A v UK, it
was important to consider how the provisions were operating in
practice.[87]
Since our last Report:
- The Government has published
the outcome of its review of Section 58 of the Children Act 2004
and the outcome of the research project proposed by the Crown
Prosecution Service (CPS) on the operation of that Act (the CPS
Research Project).[88]
- The Secretariat of the Committee of Ministers
has restated its view that Section 58 of the Children Act 2004
conforms, in principle, with the requirements of the Convention
and its case law. However: "given the vulnerability of the
victims, doubts exist as to whether the change in legislation
is sufficient on its own to ensure effective deterrence".[89]
- The Secretariat continues to have doubts about
the effectiveness of the law in both Northern Ireland and Scotland.
In Northern Ireland, it considers that the question of effective
deterrence remains an issue, as in England and Wales. They have
requested further information on the application of the law in
Scotland, on "justifiable assault". In Scotland, an
assault may be justifiable if it meets a number of criteria, including
the duration and frequency of the punishment, its purpose, the
child's age and its effect. Punishment may never be justified
where it involves a blow to the head, shaking or the use of an
implement.[90]
- The Committee of Ministers last considered this
case on 18 September 2008. The Secretariat advised the Committee
that "the outcome of the Government's review of section 58
suggests that the legal position on physical punishment remains
difficult to understand for parents and those working with children
and parents….a clear understanding of the limits of the defence
of physical punishment is required to ensure effective deterrence."
In their conclusions, they advised that their current assessment
of the compatibility of Section 58 with the ECHR "is strictly
within the limit of the European Court's present judgment".
They advised that although they could not speculate as to the
approach of the ECtHR to a similar case heard today:
[S]tates have an obligation to take general measures
to prevent further similar violations. In this context it should
be underlined that the European Court has repeatedly stressed
that the Convention is a living instrument and that in interpreting
its provisions, the European Court must have regard to the changing
conditions within a respondent State and within Contracting States
generally and respond to any evolving convergence as to the standards
to be achieved. In this respect the ratification of the UN Convention
on the Rights of the Child by all member states of the Council
of Europe (including the United Kingdom), which requires states
to protect children from all forms of physical or mental violence
(Art 19)…might suggest an evolving convergence"[91]
This advice is consistent with the conclusions of
our predecessor Committee.
- The Committee of Minsters'
Deputies decided to note "with satisfaction the changes in
the legislative framework made following this judgment and the
wide range of accompanying awareness-raising measures".[92]
However, further consideration of this case by the Committee
of Ministers has been delayed until 2009 in order to await the
outcome of a decision of the Court of Appeal in a judicial review
brought by the Childrens' Commissioner for Northern Ireland against
the operation of the defence of reasonable punishment in Northern
Ireland.[93]
Section 58 Review
74. During the passage of the Children Act 2004,
the Government committed to a review of the operation of Section
58. This review involved a public consultation and surveys of
parents, children and young people. The findings of this review
included:
Whilst many parents say they will not smack, a majority
of parents say that smacking should not be banned outright. Many
organisations however support legislation to ban smacking.
There appears to be a lack of awareness across different
audiences about the scope and application of the law.
75. Contributions to the review were mixed:
- The majority of parents who responded considered
that the law should allow parents to smack their children. Older
parents were more likely to use physical punishment and support
retaining the defence against prosecution.
- Most children thought that "smacking was
out of place in modern childhood". Children feared the emotional
distress and humiliation associated with physical punishment more
than physical discomfort and pain.
- A number of organisations argued in favour of
a complete removal of this defence. These included a number of
Local Safeguarding Children Boards, who told the review that giving
positive parenting messages was difficult because "in response
to the advice, parents would often cite the law allowing them
to smack".
76. The Government has decided to retain the
law in its current form "in the absence of evidence it is
not working satisfactorily."[94]
CPS Research Project
77. We note that the scope of this research project
was limited to establishing "if the reasonable chastisement
defence was being put forward by defendants after the enactment
of section 58 Children Act 2004 and whether the Charging Standard
was being correctly applied in those cases". Our predecessor
Committee considered the efficacy of these Charging Standards
essential to its conclusion that the reasonable punishment defence
could effectively remove the Convention breach identified by the
Court in A v UK.[95]
The conclusions of the CPS research include:
- The samples reviewed were not
sufficient in number to be statistically significant. The cases
reviewed give an indication rather than a representative picture
of how the criminal justice system has approached the defence
since the enactment of Section 58;
- Despite this small sample, the Report concludes
"there is evidence to suggest that there have been cases
where defendants charged with common assault have been acquitted
or the case was discontinued, after running the reasonable chastisement
defence. Of those cases, the file review suggests that it was
possible that some defendants could have been charged differently.
Additionally, there is evidence to suggest that the reasonable
chastisement defence may have been put forward in cases where
it is not legally available". Unfortunately the information
provided in CPS case notes did not show whether in these latter
cases, defendants were acquitted as a result of wrongly raising
this defence. We recommend that the CPS case notes should
capture important information such as this to facilitate future
research.
A ban on corporal punishment?
78. Both the NSPCC and the Children's Commissioners
for England have told us that, in their view, Section 58 Children
Act 2004 is inadequate to protect children from violence which
breaches their rights under Article 3 ECHR and that these provisions
(and the law in Northern Ireland and Scotland) fail to meet the
obligations of the United Kingdom to implement the judgment in
A v UK.[96] They
consider that a ban on physical punishment of children is the
only means to protect children effectively against breaches of
Article 3 ECHR. Both NSPCC and each of the Children's Commissioners
for England, Wales, Northern Ireland and Scotland have made similar
submissions to the Committee of Ministers and they have helpfully
provided us with copies of their submissions and the legal advice
that they have obtained from counsel.[97]
They told us:
The current uncertainties in the law across the UK
mean that it is unclear to parents when physical punishment would
constitute inhuman or degrading treatment or punishment and thus,
the law is inadequate to protect children from potential violations
of their rights under Article 3 (The Children's Commissioner
for England).[98]
The Section 58 Review conducted by the Government
was inadequate as the Government's conclusions are based principally
on the views of parents, whose traditional attitudes towards children
mean they oppose giving children equal protection to adults against
assault (NSPCC).[99]
It is unthinkable that the European Court would find
a State's legislation in compliance with Article 3 if it allowed
adults to justify as "reasonable" common assault on
women, elderly people or adults with learning disabilities. Yet,
children, as the Court has recognised, are particularly vulnerable
people who face additional difficulties in seeking remedies for
breaches of their rights (NSPCC).[100]
79. In this report, we confine ourselves to consideration
of the effective implementation of A v UK, including whether
the current law in the UK provides an effective deterrence against
future similar violations of Article 3 ECHR. We
recommend that the Government explain clearly how it considers
that the ECtHR would approach a case brought by a child who has
been punished in accordance with Section 58 Children Act 2004,
applied in accordance with the appropriate Charging Guidance.
Charging Guidance is not binding on individual prosecutors, but
it has so far been central to the Government's assessment that
Section 58 provides adequate protection to children against inhuman
and degrading punishment or treatment. The CPS review suggests
that the Charging Guidance has not been applied consistently in
all cases. We are concerned that we have seen no clear explanation
of the Government's view on how these provisions comply with the
Convention, as the ECtHR would interpret it today. Nor has the
Government explained how it considers that the ECtHR would approach
a case where the specific Charging Guidance on children was not
applied. For example, if a domestic Court were to allow a parent
successfully to raise the defence of reasonable punishment in
a case where a child has incurred scrapes, grazes, minor bruises
or a black eye, does the Government accept that this would lead
to a significant risk of incompatibility with Article 3 ECHR?[101]
80. Clear concerns about the
operation of Section 58 Children Act 2004 arise from the Government's
recent review and the research of the CPS, particularly, from
the suggestion that the defence of reasonable punishment has been
raised in cases of child cruelty, or other cases where it should
not be available. We believe that it is necessary for the Government
to demonstrate that Section 58, in the way that it operates is
compatible with our obligations, and therefore, we call on the
Government to explain its view that these reviews show that the
law operates in a way which provides an effective deterrent against
any new breaches of the right to be free from inhuman and degrading
treatment or punishment. A summary of the information provided
by the Government to the Committee of Ministers on this case has
recently been published by the Committee of Ministers Secretariat.[102]
We are disappointed
that the Government did not provide us directly with a copy of
their submissions. We wish to receive copies of these submissions
and any subsequent information notes, including on the position
in Northern Ireland and Scotland.
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