Why do we need full legal reform to end all corporal punishment? In response to the 1998 judgment of the European Court of Human Rights concerning the repeated caning of a young boy by his stepfather (A v UK), the UK Government accepted that the law must be changed to give children better protection. A series of consultations have been launched for the four countries of the UK. The Department of Health (for England) and the Welsh Assembly (for Wales), issued identical consultation documents in January 2000, with a consultation period closing in April 2000. These simply proposed new ways of defining in law what kind of corporal punishment of children should be acceptable. In February 2000 the Scottish Executive issued its consultation, which as well as setting out various possible limitations also asked "Do you agree with the Scottish Executive that parents should continue to be allowed to use reasonable physical punishment for their children?". The Executive has now (September 2001) announced proposals for reform which include banning all corporal punishment of children aged up to three — see latest news. These proposals are likely to go to the Scottish Parliament early in 2002. The Northern Ireland Office of Law Reform launched a wide-ranging consultation for Northern Ireland in September 2001 — see latest news.
The "Children are unbeatable!" Alliance calls for a ban on all forms of physical punishment. The Alliance numbers over 300 organisations (including the Royal Colleges representing paediatricians, psychiatrists and general practitioners, Women's Aid Federations, the NSPCC, churches and many parent-support agencies) as well as many prominent individuals. The Alliance recognises that parents who smack are usually acting with good intentions according to social expectations. The aim is not to denounce or prosecute parents, but simply to move society along - just as we have moved on from condoning the hitting of wives or servants.
The Alliance submitted a detailed response to the Government consultation, published on behalf of the Alliance by the NSPCC: Moving on from smacking. Download the PDF here (303k).
The Government has cited public opinion, based on poll findings, as justification for its position (though in fact its own poll shows the public is much less tolerant of physical punishment than the Government). In fact, a 1999 MORI poll found that the Alliance's position commanded strong support (73% of the general public, even higher for parents) – if those polled could be sure that trivial smacks would not be prosecuted.
The Alliance believes that on this issue the Government needs to lead public opinion rather than follow it. Evidence from the 10 European countries that have banned smacking is that public opinion quickly catches up with legal reform.
A ban on all forms of corporal punishment is needed in order to:Enhance child protection:Myths about the campaign to ban smacking
First, by easing prosecution in cases in which it is plainly necessary in the interests of the child; second, by enabling child protection workers to give parents of children at risk of abuse a clear message that no level of corporal punishment is acceptable; third, by ensuring that children have a consistent level of protection which does not vary according to where they are placed or who is caring for them, and fourth, by preventing unintended physical or psychological injury;
by providing a clear legal basis for the promotion of positive, non-violent forms of discipline by statutory and voluntary bodies working with families – discipline which reduces stress, improves family relationships and creates sociable, self-disciplined and well-motivated children;
tackle violence and crime:
because corporal punishment is a significant factor in the development of violent behaviour in childhood and later life, clear reform would help measures to reduce violence and crime. It would also help to promote the concept of zero tolerance of violence between all family members and thus reduce all forms of domestic violence, and it would help reduce bullying between children;
assert the equal human right of children to protection of their physical integrity: this is a protection which all adults take for granted. Challenging routine violence to children, the weakest members of society, is as important to them as challenging routine violence to women has been to improving women's status. The UN Convention on the Rights of the Child requires the UK to protect children from "all forms of physical or mental violence". The international monitoring body for the Convention, the Committee on the Rights of the Child, has emphasised that physical punishment within the family is not compatible with full implementation, and has formally recommended prohibition to the UK and to many other countries.
This is a debate which raises a number of anxieties and questions. Some false allegations have also been made about the effects of banning smacking, and in particular about what has happened in Sweden in the twenty years following the outlawing of smacking. A detailed review of the available Swedish data has been published on behalf of the Alliance by Save the Children UK and is available as a PDF file on the website of the Global Initiative to End All Corporal Punishment of Children. Some of these findings are given below, in which we seek to clear up misunderstandings.
would not lead to the prosecution of parents for trivial smacks – any more than adults are prosecuted for trivial assaults on other adults. On the contrary, clear reform coupled with education is likely to reduce the need for prosecutions through changes in parental attitudes and practice. This has happened in Sweden, where there has been no increase in prosecutions for parental assaults of children since the ban (the strongest decline being shown in relation to parents in their twenties – who were themselves brought up without smacking).
would not lead to more compulsory social work intervention in families or removals of children into care. Again the Swedish experience shows a marked decline in out-of-family placements of children and of compulsory forms of intervention. The grounds for social work assistance, care orders or supervision orders under the Children Act would be unaffected by legal reform.
would not prevent parents from using physical measures to protect or restrain their children, nor absolve them of their duty to teach children good manners, the difference between right and wrong, and how to behave thoughtfully and respectfully towards others. Indeed, one can anticipate greater use of positive, consistent and effective forms of discipline as a consequence of such a ban. (A recent National Family and Parenting Institute poll found only one in five parents believing smacking was an effective way of teaching right from wrong).
would not be a "pointless" or "unenforceable" measure. Although there is no increase in official state intervention in families, there have been significant changes in attitudes and practice in countries which have adopted a ban. A majority supported smacking in Sweden before the ban, now only 6% of under-35 year-olds support even the mildest form of physical punishment. On the other hand, there is no evidence that physical punishment will disappear of its own accord. The prevalence of corporal punishment in the family, including "severe" corporal punishment, remains very high in the UK. Recent Government-commissioned research involved interviews with over 400 families. It found that 97% of the four year olds were physically punished, almost half more than once a week. Three-quarters of the one year-old babies were smacked in their first year. Almost a quarter of seven year olds had experienced "severe" punishment by mothers (defined as involving "intention or potential to cause injury or psychological damage, use of implements, repeated actions or over a long period of time").
'Children are unbeatable!' Strategy Group
The Government consultation on changing the law on physical punishment (The consultations for England and Wales were issued on January 16th 2000 with a three month consultation period, closing April 21st 2000; the Scottish Executive consultation was issued in February 2000, closing on April 21st 2000. The full text is available on their respective websites.)
The Department of Health consultation document, Protecting Children, Supporting Parents, asked only four questions which were hard to answer from the Alliance standpoint as the questions presupposed that some level of physical punishment was acceptable. Alliance members were advised to make clear that their replies did not mean that they condoned the Government's minimalist approach.
The 'minimum' reform The document starts with the Government's proposals for 'the minimum steps needed' for reform, which were not open to consultation. These are as follows:
first, to set out the legal defence of 'reasonable chastisement' in written law and second, to require courts to have regard to a short checklist of factors ("nature and context of the treatment; its duration; its physical and mental effects; and, in some instances, the sex, age and state of health of the victim") when deciding whether punishment is 'reasonable'.
Comment The Government is not consulting on this basic reform - why not? In the European Human Rights Court case the UK court did consider all the above factors, so this reform would have made no difference to that case and thus cannot be the minimum necessary to remedy it. Also, the Government should surely seek to prevent such chastisement occurring, not just to secure findings of guilt in prosecutions. The law needs to give clear messages to parents. A checklist of abstract factors is useless to parents.
Respondents were then asked to answer four questions on possible additional reforms:
Question 1 What, if any, factors over and above these factors should courts consider?Comment -- As stated above, this approach does nothing to improve things. One factor that must be excluded is what the child did to merit punishment, as the European Court has held this to be irrelevant.Question 2 Should the law state that the following forms of physical punishment are never reasonable: · punishment which causes, or is likely to cause, injuries to the head (including brain, eyes and ears); · punishment using implements (e.g. canes, slippers, belts)?Comment -- It is shocking to be asked if causing a brain or eye injury could ever be reasonable! Of course these should be banned, but why stop there? What about shaking? What about injuries to mouth, nose, teeth, genitals and all other erogenous zones, fingers, toes, central nervous system, heart, lungs, stomach, kidneys and so on? What about psychological injury? What about blows with a closed fist? What about biting, kicking or pinching? What about infants? (We note the poll, commissioned by the Department of Health and quoted in the consultation document, found overwhelming support for banning smacking of under-twos).Question 3 Should the defence of reasonable chastisement be unavailable to those charged with 'actual bodily harm' (defined as "loss or breaking of a tooth, temporary loss of sensory functions including loss of consciousness; extensive or multiple bruising; displaced broken nose; minor fractures; minor cuts requiring medical treatment (eg stitches); and psychiatric injury which is more than fear, distress or panic") and more serious assaults?Comment -- One should hope that injuries of this severity are always successfully prosecuted at present. Certainly the boy in the European court case did not suffer this degree of harm and it is therefore plain the European judgement requires the Government to ban punishment which is much less severe than "actual bodily harm" (ABH). Less than four per cent of the Department of Health poll found punishment reasonable if it causes a red mark that lasts for a few days, and less than 1 per cent condoned a bruise that lasts a few days. This proposal also might well create a dangerous presumption that any injury below the level of ABH is reasonable.Question 4 Who should be allowed to physically punish children? Everyone who looks after them unless specifically prohibited by law (as now)? Parents only? Parents, plus those with express permission from parents?Comment -- This is a reminder that the law on physical punishment in non-family placements is still unsatisfactory. For example, smacking is prohibited in nurseries, but not for childminding or crèches, nor in private fostering. Research shows that children are often the abused by adults in their household who are not their parents. Obviously the limited response to this unsatisfactory question has to be parents only.