Children's Rights - Human Rights Joint Committee Contents


Memorandum submitted by the "Children are unbeatable!" Alliance

The "Children are unbeatable!" Alliance (www.childrenareunbeatable.org.uk) includes more than 400 organisations and many prominent individuals seeking equal protection for children under the law on assault, through the complete removal of the "reasonable punishment" defence and other similar justifications of punitive violence against children.

  1.  We welcome the Joint Committee's short inquiry, following up on the October 2008 concluding observations of the Committee on the Rights of the Child. These observations repeat with added emphasis the Committee's concern and recommendations concerning the lack of complete prohibition of corporal punishment of children, already made in its concluding observations on the first two UK reports under the Convention on the Rights of the Child, in 1995 and 2002 (see paras. 40-42, reproduced below).

2.  The UK Government has received consistent and strongly-expressed recommendations, not only from the Committee but from a range of other international and regional human rights monitoring bodies, that its human rights obligations require the removal of legal defences justifying punitive violence against children ("reasonable punishment" in England, Wales and Northern Ireland and "justifiable assault" in Scotland), to give children equal protection under the criminal law on assault.

3.  The Government, in response, trivialises the issue and substitutes its own interpretation of its obligations for that of these authoritative UN and other monitoring bodies. The Joint Committee has already expressed concern and disappointment at Ministers' lack of respect for the views of the Committee on the Rights of the Child, referring to the Committee's General Comment No 8 on the right of the child to protection from corporal punishment and other cruel or degrading punishment (Joint Committee 11th Report of session 2007-08, para 30). In addition to the Committee's successive recommendations in its concluding observations on the UK's reports, this General Comment has explained in detail States' obligations under the CRC to prohibit and eliminate all corporal punishment of children, providing a clear definition (Committee on the Rights of the Child, General Comment No 8, 2006; see definition in para 11).

  4.  Judges of the UK's highest courts have emphasized the importance of the Convention on the Rights of the Child, and also the importance of the interpretation of it by the Committee on the Rights of the Child. In a 2005 House of Lords judgment, Baroness Hale of Richmond described the Committee as "the authoritative international view of what the UN Convention requires", noting that it is "charged with monitoring our compliance with the obligations which we have undertaken to respect the rights of children". And in 2008 the Court of Appeal, in a judgment concerning restraint of children in detention, quoted Baroness Hale's comments and echoed the Joint Committee in stating it was "very disappointed" at a minister's "apparent lack of respect for the views of the UN Committee", referring to the Committee's General Comment No 8.

  5.  This is not a trivial matter for children, nor for the overall promotion of human rights: respect for human dignity and physical integrity is the foundation of everyone's human rights. Children's equal right to this respect is plainly breached by the maintenance of a unique defence for punitive violence against children in legislation across the UK. There is no more symbolic reflection of the denial of children's status as individual people and rights holders.

  6.  As Thomas Hammarberg, Commissioner for Human Rights, Council of Europe, concludes his issue paper on "Children and corporal punishment: the right not to be hit—also a children's right" (updated 2008): "How can we expect children to take human rights seriously and to help build a culture of human rights, while adults not only persist in slapping, spanking, smacking and beating them, but actually defend doing so as being `for their own good'? Smacking children is not just a lesson in bad behaviour: it is a potent demonstration of contempt for the human rights of smaller, weaker people."

  7.  The issue is not complex: as adults, we take for granted the full protection of the criminal law on assault, wherever we are and whoever the perpetrator. Why should children be singled out for less protection? The babies and young children who are smacked the most are smaller and more vulnerable than most adults and face far more difficulty in gaining help and protection. There is no rational justification for reducing children's legal protection when violence is disguised as discipline. No government would defend any level of punitive violence against women, confused elderly people, or people with learning difficulties. So why children?

  8.  The Government no longer defends smacking per se; Ministers state that the Government does not condone smacking. It also states it does not wish to "criminalize decent parents" (see, for example, Responding to Human Rights Judgments: Government Response to the Joint Committee on Human Rights' Thirty-first Report of Session 2007-08, January 2009, page 23). But equalizing children's protection from assault does require the criminalization of any assault which would be a criminal offence if directed at an adult—no more and no less. In normal circumstances, adults are not prosecuted for minor assaults on other adults and, as the then Director of Public Prosecutions reassured the Joint Committee in evidence in 2004, nor would minor smacking of children be prosecuted except in special circumstances. It is unlikely that prosecuting a parent for "minor" smacking would pass the public interest test or be in the victim child's best interests. There is also the de minimis principle (oral evidence by Ken Macdonald QC, DPP, to Joint Committee, 19 May 2004).

  9.  The responsible Department for Children, Schools and Families appears to base its resistance to complete removal of the "reasonable punishment" and similar defences on the fact that a majority of parents have indicated in opinion polls that they are opposed to the reform. But, as we hope the Joint Committee will emphasise in its Inquiry report, public, or parent, opinion cannot be upheld as a justification for not fulfilling human rights obligations. The Government has also stated—in its published response to a memorandum from the Council of Europe's Commissioner for Human Rights on corporal punishment—that it does not accept "that the term violence is appropriate for the level of physical punishment for which the defence of reasonable punishment is available in English or Northern Irish law or for which the defence of justifiable assault is available in Scots law". This is disingenuous in the extreme and conflicts with hundreds of thousands of children's daily experience: smacking is a form of violence which invariably invades the child's physical integrity and hurts their human dignity. The statement contrasts strangely with the Government's adopted policy of zero tolerance of domestic violence.

  10.  The UK Government has received consistent and repeated recommendations to fulfil its human rights obligations by ending the legality of punitive violence against children:

    —  from the Committee on the Rights of the Child, in 1995, 2002 and 2008;

    —  from the Committee on Economic, Social and Cultural Rights, in 2002;

    —  from the Committee on the Elimination of Discrimination against Women, in 2008;

    —  from the European Committee of Social Rights, in 2005;

    —  from the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, in a strongly-worded memorandum in October 2008; and

    —  from various States during the Universal Periodic Review of the UK's human rights record at the Human Rights Council, April 2008.

  11.  There has been substantial progress towards prohibition of all corporal punishment, including in the home, across Europe. Of the 27 EU member states, the UK is now one of just four which have not either prohibited all corporal punishment or publicly committed themselves to achieve this reform soon.

CONCLUSION

  12.  The Joint Committee has a unique and powerful role in seeking to hold the UK Government to account for its human rights obligations to children. We hope it will pursue energetically with the Government the removal of the remaining legal defences of punitive violence against children.

February 2009





 
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