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The Earl of Listowel: I shall speak briefly on something that has been touched on in the debate: parenting education and support. I hope in a helpful way to suggest to the Government that they might consider this as an opportunity to consider whether more funding might be given to parenting education and support. My noble friend alluded to the Parenting Education and Support Forum. It currently has no core funding, although it is central to parenting support; it depends on temporary project funding. It may be helpful to point out that there is an opportunity there to offer reassurance by that method.

Earl Howe: I approached the amendment with an open mind as, like the noble Baroness, Lady Finlay, and all other Members of the Committee, I detest the very idea of child abuse. I am also instinctively worried by the thought that the defence of reasonable chastisement may be being used to protect individuals who have treated children in a way that would otherwise be classified as abusive. However, I fear that I shall disappoint the noble Baroness, because I cannot live with the amendment.
 
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We need to be clear what the amendment does. It turns all smacking of children—smacking in all circumstances other than when administered in what one might term an emergency—into a criminal offence. That is so no matter how one decides that the law should be administered. The noble Baroness says that in most cases in which parents are caught smacking children, they will not be subject to criminal proceedings. I have great difficulty with the idea that we should classify something as a criminal offence and then say in the same breath that in the vast majority of cases, the law will not be invoked. That brings the law into disrepute.

Baroness Walmsley: I am sorry to interrupt the noble Earl, but is he calling for a change in the law on adult-on-adult assault in that case?

Earl Howe: The context of the amendment needs to be seen in the round. It concerns not assaults by an adult on any child but assaults by an adult on his own children. I shall come to why that point is important in a moment.

There is another important side to this, which the noble Baroness completely glossed over. Criminal proceedings are not the only dimension about which we need to worry when a parent is reported as having smacked a child. If smacking becomes illegal, as night follows day that will lead to massive over-intervention by social services. That over-intervention carries two huge downsides. The first will be a wasteful diversion of resources to trivial incidents, when it is real child abuse that social workers should be targeting. Real child abuse may well be lost sight of amid all that.

The second downside is just as bad. I have no doubt that some trivial cases of smacking—not a large number, but some—will lead to families being split up on the judgment of over-zealous social workers. If they choose to do so, social workers will have the law on their side. Children will be taken into care on totally spurious grounds. I fear that I do not share the touching faith of the noble Baroness, Lady Walmsley, in the behaviour of social services. We need to think very hard before we decide to sanction an even greater degree of state interference in family life. Some might say that there is already enough of a risk of that in the Bill.

What the noble Baroness advocates is that any parent who smacks his child as part of normal parenting discipline to teach the child right from wrong will lay himself open to arrest. I find that completely unacceptable. I am sure that everyone should avoid smacking their children if they can, but smacking a child is not the same thing as child abuse. We need to rid our minds of any idea that it is. To say, like the noble Lord, Lord Turnberg, that most parents do not know the difference between the two is nonsense. They do and they know that the law will come down hard on them if they abuse their children—the criminal law is in place to do that. But it is totally inappropriate to bring the criminal law to bear on a parent who is exercising his duty and right to bring up his own children in his own way, provided that he does not cause the child any significant harm.
 
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The amendment contains no mention of harm to the child. It takes as read that all smacking causes harm. I know of no evidence for that and it does not even appear intuitively true.

Baroness Thornton: I thank the noble Earl for allowing me to intervene. I cannot resist asking whether he agrees with the comments made from the Conservative Benches and other parts of the House that the beatings that people received as children did not do them any harm at all?

Earl Howe: It depends how severe the beatings were. Once again, the noble Baroness is trying to blur the distinction between child abuse and smacking. There is a real difference and I believe that most people know what it is. I can think of other sorts of behaviour by parents that, in my book, are infinitely more harmful to children than smacking. Verbal tirades and the use of sarcasm are the most obvious ones. No one is suggesting that parents should be arrested for them—quite rightly.

What greatly worries me about the amendment is that it would mark a fundamental shift in the legal relationship between parents and children. Here I return to the question posed to me by the noble Baroness, Lady Walmsley. The amendment says that when it comes to physical chastisement, being the parent of the child concerned counts for absolutely nothing, however reasonably the parent may have acted and however loving that parent may be. I repeat: that is just not acceptable. I sincerely hope that the Minister will strongly resist the amendment.

Baroness Ashton of Upholland: I shall not attempt in trying to sum up the debate and set out the Government's position to speak as eloquently or passionately or with the conviction of other Members of the Committee. I will not try to sum up what they have said, because many, if not all of the relevant issues have featured in the debate. I should like to say how grateful I am that this extraordinary debate has been full of the kind of conviction and passion that I would expect on such an important and difficult issue.

I begin by saying that we are considering two different outcomes when we discuss the amendment. One position is held by some Members of the Committee and another by others. It is important to fix those clearly in our minds. They are of course both perfectly legitimate positions. The first is that there should be a ban on all physical chastisement of children—the ban on smacking, to paraphrase. That is a legitimate position to hold. The other is that the defence of reasonable chastisement lets people off the hook, whether by their going to court and being acquitted or, as the noble Baroness, Lady Walmsley, said, by the fact that they never get to court because it is in everyone's mind.

They are two slightly different propositions; people may hold both equally. I have found, especially when talking to many different organisations and people who also hold very strong and passionate views on the
 
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subject, that sometimes those propositions get interchanged. We are concerned with having equality before the law and removing a defence that, we believe, stops people getting taken to court for abusing their children. Others feel equally strongly that it is about removing the right of any parent to carry out any form of physical chastisement against their children. It is in that context that the Government seek to operate around the amendment in a way that coalesces the two views.

I wish to paraphrase what I said at Second Reading, because it is important that I respond in the context of noble Lords' desire for a free vote. As the noble Earl said, we all abhor violence and abuse of children, and it is vital that children are protected, with adequate safeguards from violence and abuse. The current legal framework provides that protection. The kind of punishment that results in injury is clearly not reasonable chastisement and as such is already against the law. The Government do not wish to interfere with the legitimate and necessary rights of parents within their own families; we will not create a new offence in that context. We are prepared to consider carefully any amendment on the issue, but we will not support a complete ban on smacking. That is the position that I laid out at Second Reading and the context in which I will address the amendments.

It is critical that we all accept that our aim in the Bill is to put the child at the centre of our policies and strategies. However, as noble Lords have been very quick to point out on several occasions, it must be in the context of being in the centre of family life. The Government must be sure that in what they do, through the resources they use and in how they exercise their role, they spend their time supporting families in the best possible way. There was special pleading from the noble Earl on parenting in particular. It was a well made point, and I will take it back as a specific example. The Government must look at supporting parents, to do the kinds of things that we know would help them and to deal with some of the issues that the noble Baroness, Lady Finlay, and others raised about what happens to children and babies. From my experience with the Sure Start programme, I recognise noble Lords' comments about parents sometimes being too quick to use physical discipline and perhaps not understanding the need to support their children in other ways and to think of other forms of discipline. I agree that we need to do much more in all our education programmes for children, young people and parents to ensure that people think about parenting as a critical part of life and to equip them with the tools to do that. I support completely the idea that the Government's emphasis should be on helping people to be better parents.

We must look at what the amendment would do. Having taken legal advice as far as I possibly can and at the highest possible level, I can tell Members of the Committee that the amendment would ban smacking. Noble Lords may be perfectly comfortable with that, but it would be the effect of the amendment. We must therefore review the amendment in that context.
 
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I accept the good judgment and words of the various legal professionals who have been quoted. I shall paraphrase the words of the Director of Public Prosecutions—the transcript is not available—who attended the Joint Committee on Human Rights yesterday. He said that he had seen the amendment and believed that it clearly outlawed battery. He was very conscious that that would mean that even minor assaults would be criminalised under the amendment. Although in many cases minor offences may not come to court, his office could not issue guidance that stated that it would not prosecute in certain circumstances. He could not devise a policy where minor slaps were never prosecuted against. It is important that we understand what the Director of Public Prosecutions said.

The Association of Chief Police Officers has also been referred to. I cannot quote it directly, as it has not issued a formal statement, but as it has been referred to, I wish to outline my understanding of its position. If Parliament revises the law, the association wants the Government to issue guidance making it clear that, when it appears on the basis of the information available that a child is not suffering or at risk of suffering significant harm, the assumption should be that social services will be informed and the report will be recorded by social services but no further police action will be taken. For all of us, that raises the question whether that is the appropriate use of social services resources.

I want to make clear the reason for our difficulty with the amendment. I understand that noble Lords feel strongly that the matter should be taken out of the Government's hands and left to the conscience of each individual Member of your Lordships' House. They feel that that would follow a good record of important issues, perhaps of this nature, being dealt with in that way. I appreciate and understand that, but the Government's responsibility is to ensure that the effect of any proposition is clear and can be understood and achieved. I do not dispute for one second what noble Lords are trying to do, and I have enormous sympathy with their aim. However, if the amendment would create uncertainty in the criminal justice system, the police and social services, and make parents' position in relation to their child ambiguous, I submit that it would be difficult for the Government to allow a free vote. If we did so, we would be acting irresponsibly. I say that not because I do not understand the underlying propositions, but because of the effect of the amendment.

I pay tribute to those who have worked very hard on the amendment and looked at circumstances where parents might slap their child. I am very conscious of the words that we use. We refer to a "trivial smack", which may be offensive to some noble Lords—perhaps it is a way of describing what perhaps we would recognise. Consider the mum in a supermarket, whose child for the fifteenth time has taken the sweets off the shelf and put them in the trolley, and who says, "If you do that again, I will slap your hand". Noble Lords may find that offensive; others may feel that it is acceptable. My
 
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question is: would I wish the mother to be prosecuted if that happened? My answer would probably be no. In reality, we would be making her open to prosecution.

That is the basis of my difficulty with the amendment. We cannot have a free vote on something so important on the basis of the attitude, "Don't worry, it will never happen".

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