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The Lord Chancellor: My Lords, I am very grateful to my noble friend for his courtesy in withdrawing the amendment at Committee stage so that the noble Lord, Lord Irvine of Lairg, and the noble Lord, Lord Meston, could have an opportunity to consider it further. I am glad that the result of that consideration has been as the noble Lord, Lord Irvine of Lairg, indicated. His explanation of how the clause will work accords with my understanding of it. It also accords with the support that was given to the clause in consultation once the agreement between the interests had been intimated to the Government.

As has been explained, the Bill will go ahead onto the statute book only by agreement. I am grateful that, so far as appears today, there is such agreement. I certainly strongly support the amendment.

The Earl of Courtown: My Lords, I thank my noble and learned friend the Lord Chancellor for his support and contribution to this important amendment. I also thank the noble Lord, Lord Irvine of Lairg, for his support and for the time he has taken to consider the amendment since the Committee stage.

On Question, amendment agreed to.

Clause 27 [Interpretation]:

The Lord Chancellor moved Amendments Nos. 6 to 8:

Page 19, leave out lines 41 to 44 and insert ("Subsection (2) does not apply in relation to covenants to pay money; and, for the purposes of any reference in this Act to a covenant falling to be complied with in relation to a particular part of the premises demised by a tenancy, a covenant of a tenancy which is a covenant to pay money falls to be so complied with if-").
Page 20, line 1, after ("determinable") insert ("specifically").
Page 20, line 16, at end insert:
("( ) For the purposes of this Act—
(a) any assignment (however effected) consisting in the transfer of the whole of the landlord's interest (as owner of the reversion) in any premises demised by a tenancy shall be treated as an assignment by the landlord of the reversion in those premises even if it is not effected by him; and

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(b) any assignment (however effected) consisting in the transfer of the whole of the tenant's interest in any premises demised by a tenancy shall be treated as an assignment by the tenant of those premises even if it is not effected by him.").

The noble and learned Lord said: My Lords, I spoke to Amendments Nos. 6 to 8 with Amendment No. 1. I beg to move that Amendments Nos. 6 to 8 be agreed to en bloc.

On Question, amendments agreed to.

Children (Scotland) Bill

4.10 p.m.

Report received.

Lord Henderson of Brompton moved Amendment No. 1:

After Clause 3, insert the following new clause:

("Protection of Children from Violence

.—(1) It shall be unlawful to subject a child to violence, whether or not in the exercise of any parental right, and whether or not by way of punishment.
(2) In considering whether punishment of a child amounts to violence, regard shall be had in particular to whether the child—
(a) was struck with a stick, belt or other object; or
(b) was struck or shaken in such a way as to cause, or risk causing—
(i) injury, or
(ii) more than momentary pain or discomfort.
(3) In section 12 of the Children and Young Persons (Scotland) Act 1937 the following are hereby repealed—
(a) in subsection (1) the words "assaults," and "assaulted,",
(b) subsection (7).").

The noble Lord said: My Lords, as a preliminary, perhaps I may say that this is an all-party amendment for the protection of children from violence. I believe that all the signatories to the amendment are present except for the noble Baroness, Lady Faithfull, who, most unfortunately, has a long-standing prior engagement elsewhere. The noble Baroness spoke in support of a variant of the amendment at Committee stage in the Moses Room. She much regrets that she cannot be here today in person to support the amendment. However, she has given me authority to say that she most certainly supports the amendment together with the other signatories. I hope that the amendment will be treated as an all-party amendment, and that there will be no hint of party politics—perhaps we had enough at Question Time—imported into our deliberations.

I begin with the need for the amendment. To my mind, it has been clearly expressed by a community study of physical violence to children in the home, financed by the Department of Health, and carried out by the Thomas Coram Research Unit over the past few years. That research lends the strongest possible support to the need for this new clause, or something like it, in order to curb violence to children in their homes.

The study involved detailed interviews with mothers of one year-old, four year-old, seven year-old and 11 year-old children, a smaller number of fathers, and some of the children themselves, from among 400 randomly

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selected families. Like all such research, it probably under-estimates the real situation in that most parents will be most unlikely to exaggerate any violent treatment which they have given to children in the home. The rates of severe punishment by mothers, indicated by the study, must be of great concern to the country, the Government and this House. The figures would be even higher if punishments by the fathers were taken into account, but I cite the figures regarding mothers. Sixteen per cent. of all children had been severely punished, and 24.5 per cent. of seven year-olds had been severely punished.

The vast majority of cases of severe punishment—it is nearly 90 per cent.—involved hitting the child; and the children who were most frequently hit were more likely to have experienced other forms of physical punishment. The study defines "severe" punishment as punishment involving,

    "the intention or potential to cause injury or psychological damage, use of implements, repeated actions or over a long period of time".

I believe that my quotations from the study which has been so recently undertaken by the Coram Research Unit provides ample evidence for the need for this clause. I now turn to the text of the clause to illustrate its purpose.

The purpose of the clause is to protect children from abusive forms of physical punishment which were designated as severe in the report to which I referred. A similar provision was drafted by the Scottish Law Commission in its 1992 Report on family law. Noble Lords who were present at Committee stage in the Moses Room will remember that I sought to introduce the Law Commission's form of amendment; and previously an attempt had been made to introduce that version in the House of Commons. In the House of Commons there was a vote; the attempt was not successful. In Committee in the Moses Room there was no vote; the Committee stage was a special procedure which did not allow a vote.

I therefore withdrew the amendment in order to come back on Report, as I now do, having taken into account most minutely and seriously the objections which were raised by the noble and learned Lord the Lord Advocate and by the noble Lord on the Opposition Front Bench. To my mind they spoke helpfully and not destructively. I was impressed by the fact that the noble and learned Lord the Lord Advocate, as well as the Minister in the House of Commons, expressed some sympathy with the amendment. I very much hope that we have produced the right wording and that the amendment, or something like it, will be accepted.

This version seeks to overcome the criticisms made in Committee in the Moses Room, in particular those by the Government. It upholds the general principle that no violence to children shall be justifiable under the guise of punishment—a principle upheld by the noble and learned Lord, Lord Fraser of Carmyllie, at Committee stage and by other Scottish Ministers in another place. I believe that we have come very close to what the Government can accept. If they still have some sympathy, I hope that they will express not only sympathy but agreement.

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I should emphasise that the clause does not ban all smacking. It leaves courts to determine what amounts to violence but requires them to have regard in particular to whether the child was struck with an implement or in a way which caused, or risked causing, prolonged pain. Prolonged pain is described as "more than momentary". Thus, courts are free to take into account other circumstances in addition.

Unlike the previous version, this clause does not imply that hitting a child with any kind of implement, even a rolled up newspaper, would amount to violence. Therefore, I believe that it answers many questions raised at the previous stage of the Bill.

I hope that this revised version of the Scottish Law Commission's proposal, amended in accordance with criticisms made of it in both Houses, especially by Ministers, will find favour in all quarters of the House. If accepted, the amendment goes some way towards meeting our obligations under the United Nations Convention on the Rights of the Child. For all those reasons, I beg to move.

Baroness David: My Lords, my name is to the amendment and I rise to support it.

There are many of us who would prefer to see a clear prohibition of all physical punishment of children in line with the UN Convention on the Rights of the Child, and with the worldwide trend against accepting any level of violence to children.

It is quite inevitable that in time, and I hope sooner rather than later, we shall agree to give children at least the same protection from all kinds of assault that we as adults take for granted for ourselves. We do not defend gentle slaps of women by their husbands or, for that matter, slaps of umpires at Wimbledon and there is no logic or justice in defending gentle smacks of children.

But the new clause is not about banning smacking altogether. It is quite clear to those of us who have been working in the House over the years—and I may say that it is a good many years now—to rid our culture of the idea that deliberately hurting children is a useful form of discipline in the school or the home that a bid for full prohibition would fail at the moment. So we welcomed the proposal of the Scottish Law Commission strictly to limit physical punishment as an appropriate step in the right direction which would command public, professional and, we believed, all-party political support. So did the full range of Scottish children's organisations and professional groups. They were surprised to find that the Government, while accepting most of the Law Commission's proposals for Part I of the Bill, left out this provision. They were even more surprised to find in previous stages of the Bill that the Government actively opposed the provision. Can it be that the Government actually approve of children being beaten with sticks and belts or in ways that cause or risk causing significant pain or injury?

The noble and learned Lord, Lord Fraser, said in Committee that:

    "no violence to children should be justifiable under the guise of punishment".—[Official Report, 6/6/95; col. 12.]

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Surely, he must agree that hitting children with sticks and belts or in ways which cause or could cause injury or prolonged pain constitutes violence? I hope that we shall get an unambiguous answer to that today.

The Scottish Law Commission found that the public overwhelmingly support legislation to stop extreme forms of physical punishment. But we also know now from the very detailed Department of Health sponsored research—to which the noble Lord, Lord Henderson, referred—that one in six UK children and up to a quarter of seven year-olds are still being severely physically punished. To suggest, as the Minister did at Committee stage (again at col. 12), that,

    "statutory law and common law offer sufficient protection to children from assaults by parents, teachers or others who have charge of children",

is patently absurd, given that research finding and given the views of the whole range of Scottish professionals involved in child protection. The current law, the vague concept of "reasonable chastisement", causes a dangerous confusion in the minds of parents and inhibits those in child protection from giving clear messages.

An English Peer treads with great trepidation in to Scottish matters—and I certainly feel that strongly—and especially Scottish children's law when, on the whole, the Scots have got it more right than we have, with a sensitive children's hearings system and other innovations. But today those of us from all parties who are pursuing this issue are doing so because we have been begged to by the very strong, probably unprecedented coalition of Scottish organisations. They see it as an issue with a UK-wide significance, and so do we. Eminent figures, including the current President of the British Paediatric Association, Professor Roy Meadow, and the immediate past president, Sir David Hull, have written in support of this provision. All the major UK-wide child protection and child welfare organisations support it, although most, it is true, would go further and argue for a clear prohibition of all physical punishment.

The Minister gave us some cause for hope when he said that he had sympathy with the intention behind the new clause, but then produced legal and other arguments against accepting it. Many of these were carefully answered by the Scottish Law Commission when the noble Lord, Lord Henderson, requested it to review the criticisms. It does seem quite extraordinary that the Government should have rejected the results of the detailed consultation carried out by the commission in 1992 and such eminent legal advice in so cavalier a fashion.

However, the opposition to the Law Commission's clause from the Government seemed implacable, so we have produced, as the noble Lord, Lord Henderson, said, with our advisers, a new version which we hope will prove acceptable. It does, after all, paraphrase the words of the noble and learned Lord, Lord Fraser, that children must not be subjected to violence in the guise of punishment. It highlights abusive forms of punishment, but it does not tie the hands of courts, which can have regard to other factors as well. There is still plenty of time to sort out any remaining technical problems if we can unite behind the uncontroversial intention of protecting children from violence.

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Let us have no more attempts to trivialise this issue with anecdotes about hitting children with rolled up newspapers and so on. These insult the serious purpose of the new clause and, more seriously, they insult the good sense of Scottish judicial authorities who have absolute discretion to decide whether a prosecution is in the interests of the child and are quite capable of distinguishing physical actions taken to protect a child. The real purpose of the new clause is educational. It is a modest measure. Accepting it will send out a signal—not yet the completely unambiguous signal that some of us would like but a big improvement on the present dangerous confusion—that it is not on to hit children with implements or in ways that risk causing injury or prolonged pain. I hope very much that the Government can now accept the modified version of the clause in Amendment No. 1.

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