Previous Section Back to Table of Contents Lords Hansard Home Page

This proposed new clause has been framed to fit in with the Government's current policy on physical punishment. According to official government statements, that policy is to avoid criminalising parents while actively discouraging them from using physical punishment and promoting positive forms of discipline. In 2004, the Conservative Party took a similar line. That is also true of the media, but it is my strong suspicion that the general public are already under the misapprehension that only parents can smack children. I have been puzzled by the Government's reluctance to accept this amendment when it was proposed by my honourable friends in another place, as it makes it clear that only those people with parental responsibility have a right to the defence. The Secretary of State, Ed Balls, chose rather to pass the matter over to Sir Roger Singleton, the independent chief adviser on the safety of children. I note that the Secretary of State said in a debate in the other place that he did not rule out the possibility of accepting the amendment but wanted to wait for Sir Roger's advice before reaching a view. We now have Sir Roger's report, in which he makes three recommendations, all of which the Government have

7 Apr 2010 : Column 1595

said they accept. This has been confirmed in the letter from the noble Baroness, Lady Morgan, which says that the Government are committed to ensuring that they are taken forward as swiftly as possible.

The earliest opportunity is today, but the Government have not tabled an amendment so I have done it myself. Sir Roger's principal recommendation is that the current ban on physical punishment should be extended to cover everyone except parents and members of the child's own family or household. Sir Roger declines to define what is meant by family or household, on the ground that such an attempt would be cumbersome, bureaucratic, largely impractical and very difficult to communicate. This, frankly, is a cop-out. I can well understand why Sir Roger is not attempting to define family and household, but, unfortunately, not everyone is going to be able to shrug out of answering this crucial question. For example, are private foster parents included as a child's household? In recent weeks, we have seen the conviction for murder of the carers of Ryan Lovell-Hancox, who had been looking after him for just under 28 days-technically the point at which one becomes a private foster parent. We know that physical punishment played a central role in Ryan's death, as his injuries included a bruise in the shape of a hand on his back. Perhaps in time a court case will decide that care of under 28 days does not amount to a household-but what, then, of Victoria Climbié? Her only care in this country was by private foster carers, one of whom, a great-aunt, was also a family member. Could any court reasonably suggest that those murderous people did not constitute these children's household? I doubt it-so I must tentatively assume that private foster carers are included in those who will have a right to use physical punishment under Sir Roger's proposals.

What about step-parents, or the unmarried partners of parents? They are usually the people who kill children. Here, Sir Roger is clearer; they are to be included in the group that he proposes should be allowed the defence for common assaults on children. I am aware that Conservative spokespeople and others are deeply concerned about an apparent cover-up of the disproportionate degree to which sexual partners-specifically, those that they term guest fathers-are responsible for child abuse. Baby P and Khyra Ishaq are currently the most notorious cases of that.

Sir Roger mentions the fact that his attention has been drawn to these many cases where children have been seriously injured or killed by the partners of their parents, but what does he say about it? He says that these were all cases of unlawful violence and that it is speculative whether the reasonable punishment defence, had it been available at the time, would have had any impact on the assailants' behaviour. Of course, it is speculative that these cases of serious abuse might not have occurred if, for example, a social worker could have informed the mother's boyfriend that he would be breaking the law if he laid a finger on the child. However, it is reasonable to suppose that some children might have been saved-and if even one child had been, does that not justify removing the defence for something that both Sir Roger and the Government say that they do not approve of in the first place? He

7 Apr 2010 : Column 1596

questions whether the defence should be given to those acting in loco parentis, in circumstances where the adult with formal parental responsibility is content for a mild smack to be administered.

Finally, I return to Sir Roger's proposals that it should be for the courts to decide when a person is a legitimate member of the child's family or household. It is here that we see one of the greatest weaknesses in having such an unclear law. Sir Roger's report notes that the CPS is aware of only 14 cases where the defence might have been raised since Section 58 came into force in 2005, but no cases at all where the use of the defence has resulted in a conviction. In other words, no courts have been asked to test the concept of reasonable punishment, and you can be reasonably sure that no courts will test the definition of family or household either. One reason is that the victims are children. How are children, who are utterly dependent on those inflicting the physical punishment, likely ever to be in a position to challenge that person through a court action?

Calls to Childline make it clear that thousands of children are suffering daily from distressing forms of physical punishment. Far more children than ever come to the attention of social services. Sir Roger's proposals on family and household are guaranteed to cause even greater confusion over the law than at present. I have not mentioned nannies; are they included in households? Accepting this proposed new clause in my Amendment 40 would provide a swift and clear solution to a safeguarding issue of considerable importance to children, and something to which the Government themselves have said that they were committed. I beg to move.

Lord Judd: My Lords, briefly, I warmly support what the noble Baroness has said. As usual, she has put the case clearly and comprehensively, and she should be congratulated on that. I would make a few points. First, I am glad that she emphasised that the Government have tried to move in the right direction on this and that this amendment is to help, as it were, underline and strengthen the direction that the Government have taken. It is in no way hostile to government policy but to strengthen it, and in that sense it should be taken very seriously.

I find it extraordinary that, in the 21st century, we can still have institutionalised in law the concept that children can be attacked. It is no accident that the language of the law uses the term "battery", which gives us a good deal of grounds for concern. It is also sad that we are not in the vanguard of the drive throughout Europe to make sure that civilised values are paramount at all times in our treatment of the most vulnerable in our society, who are of course children.

11.15 pm

I also make the point that at a time when we are preoccupied as a nation-and rightly so-by the issue of child abuse in other forms, it is certainly dangerous to have a law which is so unclear about what is permitted and what is not. I have always believed that it is absolutely essential in this area to have clear-cut language which sends a direct message to all concerned.

7 Apr 2010 : Column 1597

However, the wash-up is not the time for a debate on the merits or demerits of chastisement of children by anybody. It is a time to clarify the intention of the Government at the moment. I believe that this amendment seeks to do that, and in that sense I commend it to the Committee.

Baroness Morgan of Drefelin: My Lords, I hope I can do as my noble friend suggests. I start by saying that the Government take very seriously the views and thoughts of your Lordships' House on this issue. There have been several debates in this House over the years and we have done our best to listen carefully throughout. It was this House that contributed significantly to the current law as it stands. To be clear: at present, physical punishment has been prohibited in maintained schools, full-time independent schools, childminding settings, early years settings, children's homes and local authority fostering.

There are some educational or quasi-educational learning settings where express prohibitions do not apply-for example, madrassahs and Sunday schools, and in relation to individuals such as music teachers or sports coaches and so on. By analogy with teachers in schools, they might arguably be acting in loco parentis when supervising children. If so, they may be able to plead the defence of reasonable punishment to a charge of common assault, as noble Lords have said. Also, people within or close to families, such as step-parents, grandparents and babysitters, may also be acting in loco parentis and could plead the reasonable punishment defence.

I welcome the opportunity to respond to the concerns expressed. The Government take the issue of smacking, including the use of physical punishment by persons other than parents, very seriously. Therefore, in the light of recent concerns that there is a potential legal loophole, the Secretary of State-as the noble Baroness, Lady Walmsley, pointed out-sought advice from the chief adviser on the safety of children, Sir Roger Singleton. His independent advice to the Secretary of State was published on 30 March 2010, along with the Government's response.

Sir Roger made three clear recommendations, which the Government have accepted. His first recommendation is:

"The current ban on physical punishment in schools and other children's settings should be extended to include any form of advice, guidance, teaching, training, instruction, worship, treatment or therapy and to any form of care or supervision which is carried out other than by a parent or member of the child's own family or household".

The second recommendation is:

"The Government should continue to promote positive parenting strategies and effective behaviour management techniques directed towards eliminating the use of smacking. Parents who disapprove of smacking should make this clear to others who care for their children".

Recommendation 3 is:

"The development of appropriate safeguarding policies in informal education and learning organisations should continue to be promoted. Legal changes which flow from adoption of these recommendations will need to be communicated".

The noble Baroness, Lady Walmsley, said that the Government have accepted these recommendations-as we have-and that we would bring forward legislation

7 Apr 2010 : Column 1598

at the earliest opportunity. These issues are complex and need to be thought through very carefully. There needs to be consultation.

Lord Judd: Will my noble friend give way? I am listening very carefully to what she says but does she not accept that in the real situation many of those who may be caring for children on behalf of parents have not had the benefit of a great liberal education that most of us in this House have been able to take for granted? They operate very often on a high level of emotional reaction to situations. In that context, the law as it stands sends a divided message. On the one hand, it says that we do not believe in this punishment-indeed, my noble friend is saying that parents should tell people who take care of their children if they do not approve of it-but, on the other hand, the law says that it is possible.

Baroness Morgan of Drefelin: My Lords, in many ways I agree with my noble friend. I want to be clear that the Government do not condone smacking. I think that most parents who have smacked a child in anger find that a very unsatisfactory situation for parent and child. We want to embrace Sir Roger's second recommendation that we continue to promote positive parenting, as we have done. We know that over the years parents have become less likely to engage in smacking or the physical punishment of children, so there is a trend in this country. However, it is absolutely right that any change to the law should be very carefully thought through.

There is a fundamental problem with the amendment, which is that the concept of parental responsibility is limited only to a very few members of a child's family. I know that the noble Baroness is aware of this. It is limited to a few members of a child's family who may be playing a significant role in its upbringing, but people such as grandparents and step-parents, who have not specifically entered into parental responsibility agreements-aunts, et cetera-will usually not have parental responsibility for a child and therefore would not be able to rely on the defence of reasonable punishment. This means that within families there will be an inconsistency with regard to which carers have responsibility for potential legal protection of the defence.

Lord Wallace of Tankerness: The Minister has indicated that there was a recommendation that legislation be brought forward at the earliest opportunity. Is not this the earliest opportunity, and is the fact that she is not accessing this earliest opportunity due to the stitch-up that she has done with the Official Opposition?

Baroness Morgan of Drefelin: I do not accept that. It would be a big mistake. This House is always very concerned about rushed legislation. [Laughter.] We have heard that this evening on many occasions. I press on. I believe that Sir Roger's recommendations will improve the protection of children.

Lord Wallace of Tankerness: I apologise to the noble Baroness for laughing.

Baroness Morgan of Drefelin: I thought that we took it in turns to speak and that we speak only when

7 Apr 2010 : Column 1599

one of us is standing, and I was not giving way. I believe that Sir Roger's recommendations improve the protection of children, but without potentially criminalising grandmothers, other kinship carers and other close relatives who administer a mild smack. The Government are therefore committed to implementing the recommendations as soon as possible. I reiterate this assurance. I hope that with that the noble Baroness and my noble friend will consider withdrawing the amendment.

Baroness Walmsley: I thank the Minister for her assurance that should her Government by any chance be re-elected on 6 May, she will bring this matter forward again. If she has the opportunity to do so, we will press her to go further than the recommendations of Sir Roger Singleton. She relies on a potential inconsistency in what I am trying to achieve between the legal position of a parent who hits a child and that of a grandmother who hits a child. I ask her to consider the inconsistency for children as regards their protection vis-à-vis the laws of assault compared with adults. It is illegal to assault an adult; it is not fully illegal to assault a child. However, the hour is late. I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

Clause 31 disagreed.

Clause 32 : Restriction on publication of information relating to family proceedings

Debate on whether Clause 32 should stand part of the Bill.

Baroness Walmsley: My Lords, in this group I seek to oppose the questions that Clauses 32 to 42 should stand part of the Bill. In other words, I seek to delete the whole of Part 2. The Minister suggests that it is not a good idea to put things through that are very controversial at this stage. I agree with her regarding Part 2. This part of the Bill was not debated at all in another place. I oppose Part 2 also on the basis that, as the Minister herself admitted in a letter dated 24 March to the noble Baroness, Lady Verma, after the Second Reading:

"This was followed in November 2009 with pilots to provide easily accessible and anonymised judgements in some family court cases. These judgements will be evaluated as we move forward".

"Will be evaluated" are the crucial words. I shall explain why.

The Government have set up a pilot to try out a different way of opening up the family courts to public scrutiny-an objective of which we approve. Only four months after the pilot began they are seeking to legislate for a different method anyway. The pilot is not complete and its outcomes have not been measured or evaluated as to whether they achieve their objectives without endangering children, families, expert witnesses or any other innocent people. Yet the Government, in their rush to do something before they eventually sigh their last breath, have decided to put into this Bill measures

7 Apr 2010 : Column 1600

which have raised the utmost concern among many organisations and, in particular, the people who matter most to me-the children.

The former Children's Commissioner, Sir Al Aynsley-Green, was fiercely against these measures because he had asked the children and he knew what they thought. His organisation, 11 Million, carried out a survey of children and asked for their views on these matters. He found that almost all children were opposed to the media being allowed into family courts to hear children's cases. The children also said that they would be less willing to talk about ill treatment by a parent and disputes between their parents. All this was despite them being made aware that there would be a formal ban on publishing information that might allow them to be identified. Most remained unconvinced on the power of the law to protect their privacy.

Children also did not trust newspapers to protect their privacy. If children are unwilling or unable to talk about what has happened to them, family judges may be faced with making difficult decisions about their future, in the absence of the child's evidence about his wishes and feelings. All the young people said that they did not want their parents to speak to the press while cases were ongoing, and some children felt that without their permission parents should not do that after the case was over. Even with information that the press could not name them, children were fearful that sensitive issues about them would appear in the local press, causing them further humiliation. Young people said that judges or magistrates should seek the views of children before deciding whether to admit the press to a hearing about their future care or safety.

A paper by Dr Julia Brophy of Oxford University also made it clear that children do not trust judges and magistrates to make the right decisions regarding media access and reporting. She analysed recent studies and concluded that in the face of media access, children may withdraw from the process before judges have an opportunity to demonstrate whether any alleged trust is appropriate. Dr Brophy was scathing about the extent to which the Government had consulted children before bringing forward the measures in Part 2.

We have received briefings from many children's organisations indicating their major concerns about these clauses. We have heard also from the Law Society which states that it supports openness in family cases; however, the need to protect children should be a paramount concern in family proceedings. The Law Society states that it is very important to remember that decisions in family cases will affect children and their parents for the rest of their lives. The court has a strong responsibility to make judgments based on the best evidence available. Much of that evidence may be very sensitive and of a sort that most of us would not wish to be publicly available. There is a balance to be drawn between ensuring that there is public confidence in the process, and the needs of the parties to feel able to be open with the court and to trust the proceedings.

11.30 pm

The Law Society is particularly concerned by Clause 40, which provides the power to alter the treatment of sensitive personal information. This clause enables the

7 Apr 2010 : Column 1601

Lord Chancellor to make an order to bring into force amending provisions relating to the treatment of this information. There are safeguards. An independent person must undertake a review, not before 18 months, of the operation of the proposed change and must lay their conclusions before Parliament. The statutory order must also be laid before, and approved by resolution of, each House of Parliament. However, the Law Society believes that a strong case should be made before sensitive personal information about identifiable individuals can be reported. The society does not believe that openness and transparency will be achieved by publishing sensitive personal information. The lawyers do not understand what benefit would be gained from the media using this information as a means of communicating to the public the operation of the family justice system. They therefore urge your Lordships to delete Clause 40 from the Bill.

The NSPCC, too, is deeply concerned that any relaxation of the rules on publishing sensitive personal information will increase the likelihood of identification of vulnerable children and families in local press reporting. It says that the amendments brought forward by the Government in another place do not adequately address the dangers. It does not believe that Part 2 of the Bill will serve the public interest or ensure that family courts are accountable. It, too, urges the Government fully to explore other methods of achieving the desirable level of scrutiny without endangering children.

The Children's Rights Alliance for England, along with the Interdisciplinary Alliance for Children, have also expressed concerns. While supporting reform of the family courts in principle, they feel that these measures have been adopted without adequate consultation or an assessment of the potential impact on children. They have even written to the Leader of the Opposition, urging him to get his party to oppose this section, and have quoted the opposition spokesman in another place, who supported that position. We have also heard from the BMA and the Medical Protection Society, which have concerns about the effect of identifying professional witnesses. Both organisations are concerned that these measures are being adopted without the matter having been fully thought through.

It is clear that there are major concerns in the country, both on the part of children and families and the organisations that represent them, and on the part of professionals on whose advice court often depends. We in your Lordships' House have also not had a proper opportunity to scrutinise these measures, including the amendments introduced at a later date in another place. They were not properly scrutinised there, either. I contend that under these circumstances, it would be unsafe to go ahead with Part 2 of the Bill. I therefore invite noble Lords, and especially the Conservative Benches, in the light of the words of their Commons spokesperson, to agree with me that this clause should not stand part of the Bill.

The Earl of Listowel: My Lords, my name is attached to that of the noble Baroness, Lady Walmsley, in opposing the clause. She has eloquently expressed our concerns on this matter. I have met the chair of the

7 Apr 2010 : Column 1602

family courts committee of the Magistrates' Association. She expressed her strong concerns. Many other interested parties, including the NSPCC which work directly with children in these areas, have had long-standing concerns about this proposal. The noble Baroness, Lady Howarth of Breckland, the chair of the Children and Family Court Advisory Support Service, expressed strong concerns at Second Reading on the matter, as did several other noble Lords.

The noble Lord, Lord Rooker, began this afternoon's proceedings by reminding us of the adverse effects on the public when legislation is ill considered by this House. I emphasise that when Parliament does not give proper consideration to legislation affecting children, the consequences can be very serious. Therefore, I support the noble Baroness's request that this section should be removed from the Bill.


Next Section Back to Table of Contents Lords Hansard Home Page