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Physical Punishment In The Home-
Thinking About The Issues,
Looking At The Evidence
Submission by The Children’s Law Centre
EXECUTIVE SUMMARY
This paper:
1 Outlines the views of children and young people and collates
some of their artwork from three workshop sessions at the
conference jointly hosted by Save The Children and Children’s
Law Centre on 6 October 2001,Have Your Say!
2 Outlines the present legal position in detail with regard
to both the criminal and civil law
3Provides a children’s rights analysis of human rights
issues
4 Makes specific recommendations for legislative change namely
repeal of the defence of reasonable chastisement under the
criminal law and amendment of The Children (NI) Order 1995
(family/civil law)
5 Comments on the implications under Section 75 Northern
Ireland Act 1995
6 The Children’s Law Centre calls for the child’s
right to physical integrity to be protected.
7 We believe that children should have equal protection in
law as adults from assault.
8 We call for a major education campaign about positive discipline
and for funding for parenting programmes.
9 We believe that our children should be “unbeatable”
Introduction
The Children’s Law Centre is an independent non -governmental
organisation established in September 1997. We help young
people, their parents and carers and professionals work with
and understand laws, which affect children. Our organisation
is grounded on the principles enshrined in The United Nations
Convention On the Rights of The Child, in particular,
Article 2 Children shall not be discriminated against and
shall have equal access to protection
Article 3 All decisions taken which affect children’s
lives should be taken in the child’s best interests
Article 12 Children have the right to have their voices heard
in all matters concerning them.
The Children’s Law Centre offers a number of different
services;
Information on children’s rights
Advice on children’s rights and the law as it relates
to children and young people
Training on children’s rights
Research and monitoring of children’s rights
Representation pursuant to casework policy
At a conference on 6 October 2001, organised by the Children’s
Law Centre and Save The Children, entitled “Have Your
Say”, young people facilitated a workshop to enable young
people to have a say about physical punishment in the home.
Their views have been collated and form an integral part of
our submission. Some of the artwork facilitated during the
workshops was particularly illuminating with regards to the
views of young people and again we have incorporated this
work in our submission. We found this to be a very useful
way of asking young people to address a very complex and sometimes
emotive issue.
Children’s voices must be heard in this debate and we
very much commend the efforts made by the Office of Law Reform
to work with children and young people in a genuine effort
to obtain their views. This is very much in keeping with Article
12 of The United Nations Convention On the Rights of The Child
and with the statutory duty under Article 75 of The Northern
Ireland Act 1998.
We thank The Office Of Law Reform for producing an extremely
clear and comprehensive document about physical punishment,
which hopefully will lead to a thoughtful period of consultation
about the issues and evidence.
We trust that the consultation process can be used as a model
by other government departments who are shaping the quality
of children’s lives through legislation, policy and practice.
Submission
The Children’s Law Centre is part of the wider grouping
of children’s organisations campaigning for legal reform
in this area of the law to protect children, The Children
Are Unbeatable Campaign. We endorse in totality the comments
made by the campaign in their submission.
Whilst our comments our from a legal perspective, we have
become aware throughout our long information gathering process
of the critical importance of the views of those working in
the field of Child and Adolescent Psychiatry and those working
in family centres and parenting programmes throughout Northern
Ireland.
We have read the analysis of parenting programmes compiled
by Save The Children in their submission to the Office of
Law Reform and endorse the comments made on the need to provide
and resource adequate programmes to provide support to families.
We note that most positive parenting programmes are offered
by the voluntary sector by organisations such as Barnardo’s,
Parents Advice Centre, local community organisations and family
support programmes such as Newpin, Lifestart and Homestart.
There is little or no statutory provision. We endorse the
comments made by Save The Children in relation to addressing
the particular gaps in provision in relation to Travelling
families, fathers, parents of children with disabilities and
families with a child in prison.
There should also be proper training provided about positive
discipline methods for all of us working with children and
young people and their families. An excellent article was
published recently by Fionnuala Leddy, Child and Adolescent
Psychiatrist in Childcare In Practice, [1]which examines using
non-violent means to parent children through understanding
how problem behaviours develop. Dr Leddy indicates in her
article how important early intervention strategies are but
unfortunately many behaviour clinics have closed their waiting
lists. She also makes the key point that parenting programmes
must be easily accessible by parents; and that help for other
conditions such as maternal depression and child ADHD must
be available. She concludes as follows;
“ The arguments used in this paper against the use of
corporal punishment, is its association with a long term increase
in aggressive behaviour in the child, with future mental health
problems and anti social behaviour, and with the increased
risk of physical abuse of the child. Furthermore smacking
does not offer a positive learning experience in which the
child develops a conscience. Another powerful argument against
smacking, commonly offered by parents, is that it does not
work. It is important to acknowledge however that smacking
is still widely used; it cannot simply be banned without first
putting into place supports aimed at teaching parents more
effective parenting techniques”
This paper will focus on the consultation questions in relation
to legal reform. However, it is in the context of these types
of essential services for children and their families and
of positive discipline strategies that we would wish to place
our remarks. We firmly believe that legislative change must
go hand in hand with a major sea change in terms of funding
for positive parenting initiatives, accessible to all families.
Have Your Say; The Voices of Children and Young People
Children And Young Person’s Consultation
The Children’s Law Centre and Save The Children/ Youth
@ CLC held a conference on 6 October 2001 called Have Your
Say. Youth @ CLC ran 3 workshops throughout the day on physical
punishment and encouraged young people to give their views
on the following questions;
1 Do You Think The Law Protects You As A Young Person From
Physical Punishment?
2 Do You Think Parents Need Help With Their Job?
3 How Would You Discipline Your Child?
Two members of Youth @ clc facilitated each workshop and
gave a presentation at the beginning of each workshop outlining
the current legal position and explaining the United Nations
Convention On The Rights of The Child and the European Convention
On Human Rights, dealing specifically with the Re A case.
Question One
Do You Think The Law Protects Children?
Some of the young people’s comments in relation to protection
are as follows;
“ No one should be hit – sometimes too scared to
think about who can help”
“ Parents are often frustrated”
“ There should be support for parents- parents sometimes
need help”
“ Older people have a better chance of being heard”
“ Parents think it is their right to slap, but this
can create a vicious circle”
“ Everyone thinks children are not mature”
“ Everyone thinks adults are more responsible than children”
“ The law is nothing to do with me”
“ The police wouldn’t believe us because we are
too young”
Young people of different ages and from different backgrounds
need to be heard
Question 2
Question; Do You Think Parents Need Help To Do Their Job?
Young people said that it was hard for parent’s particularly
new parents, one-parent families and parents who work all
day and that they sometimes needed help. They wanted to see
more support given to parents and “more places”
you could go to for help. They talked about giving new parents
information.
Young people we consulted recognised that some parents need
help to do their job.
Question 3
Question; How would you discipline your child?
“ Grounding”
“Take pocket money away”
“ Take play station away”
Discipline is not all negative, it shouldn’t always
mean physical punishment
“ Ask the child why they did it and listen to the answer”
“ There can be different punishments suitable for different
ages”
“ Punishment can become abuse”
“ You shouldn’t whack for anything”
“ Its difficult to explain to a child …(why they
have been hit)
“Young people need to be asked; to be talked to and
be able to understand. Parents and children should respect
one another”
“ Try peaceful means first”
“ It’s important for parents and children to have
a good relationship”
“Trust is very important”
“ I wouldn’t smack because it didn’t happen
to me”
“ Very young children don’t know what they’re
doing so they shouldn’t be punished”
“ Parents should teach their children”
Some young people indicated that there are some cultural
differences about the use of physical punishment in families,
which need to be addressed.
“It’s not all right to hit someone hard eg with
a belt”
“ A slap which you can feel but does not hurt is OK-
punching is not OK”
“ Wanting to cause pain is not OK”
“ Hitting them won’t make people stop doing something-
they need to talk about it instead”
Sometimes the way young people behave is due to a lack of
support for them eg no Youth Clubs in their area or after
school clubs. Sometimes facilities exist but they’re
closed.
The Use of Physical Punishment; A Children’s Rights
Analysis of Necessary Law Reform
The Current Law In N. Ireland
We have outlined below our understanding of the current law
in N Ireland, both civil and criminal which may be relevant
to this debate. We realise that a specific consultation question
was not posed about our domestic law, but have included this
analysis by way of introduction to the detailed proposals
for reform, which we will suggest at a later stage in this
paper. We have included a glossary of terms, as we will be
circulating this paper to a multi disciplinary readership.
THE CRIMINAL LAW
There are a number of different offences relating to the
physical harm of children and these are set out below together
with the maximum sentence such an offence is likely to attract.
GLOSSARY OF TERMS
“Common Law” means that the offence is not regulated
by statute and has been shaped by case law made by judges.
“Summarily” means the case is heard in a Magistrate’s
Court or Youth Court.
“ On Indictment” means the case is heard in the
Crown Court.
“Scheduled Offence” means an offence which is scheduled
under Schedule 1 to the Northern Ireland (Emergency Provisions)
Act 1996 as amended 1998.This is a list of cases which relate
to serious matters for which there are special provisions
in relation to bail/questioning etc and for which there are
special court hearings/ judge without a jury.
Not all scheduled offences are terrorist offences. Some of
the offences, which have been set out in this paper eg. assault
occasioning actual bodily harm are scheduled offences, which
can be descheduled and dealt with in ordinary courts.
“Descheduling” When someone is suspected of having
committed a scheduled offence they automatically go into the
above system, but the Attorney General can look at the facts
of the case and if he decides that the offence is not terrorist
related he can issue a certificate descheduling the offence.
This means that the case can be heard in an ordinary Magistrate’s
Court, Youth Court or Crown Court. In the Magistrate’s
Court, the Magistrate will hear the case alone. In the Youth
Court the Magistrate will hear the case with 2 lay panellists.
In the Crown Court the judge will hear the case with a jury.
COMMON LAW OFFENCES
ASSAULT
“ Assault” is defined in Blackstone’s Criminal
Law & Practice 2001 as “ intentionally or recklessly
causing another to apprehend immediate and unlawful violence”.
The threat of violence can be an assault, as can threatening
phone calls if imminent violence is feared.
BATTERY
“Battery” is defined in Blackstone’s Criminal
Law & Practice 2001 as intentionally or recklessly inflicting
unlawful violence. It requires the unlawful application of
force.
CRUELTY TO A CHILD
Maximum Sentence; Unlimited on Indictment
Examples of cases involving children: cruelty to 15 yr old/locking
in garage, poring paint thinners over child, pushing a cigarette
in his mouth, rope around neck.
STATUTORY OFFENCES
OFFENCES AGAINST THE PERSON ACT 1861
SECTION 47 & COMMON LAW; COMMON ASSAULT;
maximum sentence; one year
Indictable offence triable summarily (this means the offence
can be tried either in the magistrate’s court or the
crown court)[2]
SECTION 47;ASSAULT OCCASIONING ACTUAL BODILY HARM
Maximum sentence; 5 years
Scheduled Offence, which is “deschedulable”
Indictable Offence, triable summarily
Practice Note (Mode of Trial) Guidelines 1995 in England
suggest that cases should be tried in the Magistrate’s
Court unless a weapon has been used which is likely to cause
serious injury, the weapon is used and serious injury is caused,
more than minor injury is caused by kicking, head butting
or similar forms of assault, violence to vulnerable people
or serious violence to those working with the public.
Examples of cases of assault occasioning actual bodily harm;
punch in the face causing stitches and bruising to jaw (adults),
hitting in the face causing bruising and swelling (adults),
slapping three year old son in the face causing swollen and
bruised cheek and bruise in mouth, slapping 10 mth old in
face causing bruising.
Actual bodily harm has been defined as any injury which is
calculated to interfere with the health or comfort of the
victim although it appears that the CPS in England may not
endorse bringing charges under section 47 unless there has
been more serious injuries such as broken teeth, extensive
bruising or cuts, psychiatric injury which is more than fear,
distress or panic, multiple bruising, loss of consciousness
etc.[3]
Quite clearly this is what the government in England was
referring to when they asked whether it could ever be reasonable
to break a child’s tooth, cause the child loss of consciousness,
multiple bruising, minor fractures etc. ie should parents
be able to argue reasonable chastisement to a section 47 assault
occasioning actual bodily harm.
Examples of cases involving children where charge has been
assault occasioning actual bodily harm; biting 2 year old
on cheek, hitting two year old in the face, kicking a child,
slapping baby on cheek, striking with a slipper repeatedly.
SECTION 42 ASSAULT OR BATTERY
Maximum sentence; 3 months or level 3 fine on summary conviction
The common view is that S42 is a summary offence, but note
comments of Barry Valentine in this regard[4]
SECTION 43; AGGRAVATED ASSAULT ON CHILD OR FEMALE
Maximum sentence; 6 months or level 4 fine
Triable On Indictment or summarily, but Magistrate can refuse
summary trial.
SECTION 20;WOUNDING/CAUSING GRIEVOUS BODILY HARM
Maximum Sentence 5 years
Triable On Indictment or summarily
Scheduled offence which can be descheduled
Blackstone’s Criminal Law & Practice 2001 give examples
of cases under this section of victims who have been kicked
in the head on the ground, head butting causing fracture,
use of a weapon, glassing people in the face etc.
Wounding requires the breaking of the continuity of the skin
or breaking of inner skin. Grievous bodily harm has been interpreted
as meaning simply really serious harm.
Examples of convictions under this section; 19 mth old placed
in scalding water striking child on side of head causing fractured
skull, beating 2 yr old with a buckled belt causing fractured
rib and elbow,
The Charging Guidelines in England set out a list of offences
likely to be sufficiently serious to be prosecuted under these
sections, but these are not publicly available.
SECTION 18 WOUNDING/CAUSING GRIEVOUS BODILY HARM WITH INTENTION
TO CAUSE GRIEVOUS BODILY HARM OR TO RESIST APPREHENSION
Maximum Sentence; life
Indictable Offence
Scheduled Offence which can be descheduled
Examples of cases involving children; serious burns to leg
requiring skin graft, hitting baby on the head causing three
fractures, blows to head and stomach
SECTION 27; ABANDONING A CHILD UNDER 2
Maximum Sentence; 5 years on Indictment
Triable On Indictment Or Summarily
THE CHILDREN & YOUNG PERSON’S ACT 1968
SECTION 20; CRUELTY TO A CHILD UNDER 16(WILFUL ASSAULT, ILL
TREATMENT, NEGLECT ETC.)
Maximum Sentence 10 years on Indictment/ 6 months on summary
conviction
Triable On Indictment or Summarily
SECTION 29 EXPOSING CHILD TO RISK OF BURNING
Maximum Sentence; level one fine
Triable Summarily
Examples of cases involving children; child of 2 deliberately
scalded, failure to get appropriate medical treatment throwing
child in a car seat causing him to land on head, shaking child,
making children go to bed without food, cut lawns with nail
scissors, forcing child’s head down lavatory all as punishment
for alleged misbehaviour, biting children, failure to protect
child from physical punishment administered by male partner,
child of two kept in small room with window boarded up, leaving
child of 3 home alone, going on holiday to Spain and leaving
3 children.
Whilst some of these cases reflect deliberate cruelty and
infliction of physical harm, many of the defendants in the
cases talk of loss of temper due to children who are persistently
crying, ill or misbehaving. Some cases involve poverty and
sad family circumstances. Many involve parents, who are young
or isolated, for whom things have got out of control. This
makes an emphasis on funding for family support services and
positive parenting programmes extremely important.
All of these cases listed in this section attracted custodial
sentences, some lengthy.
DEFENCES
NB; There is a common law defence of reasonable chastisement/lawful
correction. Chief Justice Cockburn in the case of R v Hopley
first laid down in case law the principle of reasonable chastisement.
It was held in this case that physical punishment cannot be
reasonable where it is administered for the gratification
of passion or rage, or if it be immoderate or excessive in
its nature or degree, or if it be protracted beyond the child’s
powers of endurance, or with an instrument unfitted for the
purpose and calculated to produce danger to life or limb,
in all such cases punishment is excessive, the violence is
unlawful.
This defence was included in statute, in The Children &
Young Person’s Act 1968 in N Ireland. Section 20(6) of
The Children & Young Persons Act 1968 states that nothing
in the previous sections of the Act ie the offences which
I have referred to above, affect the right of any parent or
any other person having the lawful control or charge of a
child or young person to administer punishment to him. The
statute does not define what that punishment may be and the
case law gives little firm guidance as to what is acceptable
and what isn’t.
In our view, this leaves children unprotected from physical
punishment in the home and demonstrates that the criminal
law position is very much at odds with our civil law which
provides a much greater degree of protection for children.
CROWN PROSECUTION GUIDELINES; The Crown Prosecution Guidelines
available publicly in England. The DPP in N Ireland do no
publicly circulate their Guidelines in NI.
CHARGING STANDARDS; these are not publicly available in England
or NI. Basically these standards set out the type of offence,
which should be charged if certain injuries are inflicted.
The absence of these charging standards makes it difficult
for us to assess properly the present prosecution system.
CIVIL LAW
THE CHILDREN (NI) ORDER 1995
INVESTIGATION INTO CHILD’S CIRCUMSTANCES
Article 56 Children (NI) Order 1995; Where, in any family
proceedings in which a question arises with respect to the
welfare of any child, it appears to the court that it may
be appropriate for a care or supervision order to be made
with respect to the child, the court may direct the appropriate
authority to undertake an investigation into the child’s
circumstances.
PUBLIC LAW
EMERGENCY PROTECTION ORDER
Article 63 Children (NI) Order; can be made where there is
reason to believe that the child is likely to suffer significant
harm if he is not removed to accommodation provided by or
on behalf of the applicant or he does not remain in the place
in which he is being accommodated. The order can last 8 days
and can be extended once by up to seven days.
INTERIM CARE ORDER/CARE ORDER
Article 52 Children NI Order 1995
GROUNDS; a) The child concerned is suffering significant
harm, or is likely to suffer significant harm; and
b) The harm or likelihood of significant harm is attributable
to;
i) the care given to the child, or likely to be given to
him if the order were not made, not being what it would be
reasonable to expect a parent to give to him or
ii) the child’s being beyond parental control.
These criteria are known as the threshold criteria. If an
interim care order or a care order is made in respect of a
child the Trust obtains parental responsibility for the child
and shares this in most situations with the parent (if they
have parental responsibility already). The aim of a care order
is to protect a child from significant harm.
SUPERVISION ORDER
Threshold criteria are the same, but parental responsibility
does not pass to the Trust on the making of a supervision
order.
PRIVATE LAW
PARENTAL RESPONSIBILITY
This is defined under Article 6 of the Children (NI) Order
1995 as;
“ All the rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation
to the child or his property”
Parental responsibility is concerned with bringing the child
up, caring for him/her and making decisions about him/her,
but does not affect the relationship of parent and child for
other purposes”[5]
The concept of parental responsibility is of key importance
to this debate and we will return to this in our comments
on necessary law reform.
ARTICLE 8 ORDERS
RESIDENCE ORDER
An order settling the arrangements to be made as to the person
with whom a child is to live[6]
CONTACT ORDER
An order requiring the person with whom a child lives or
is to live to allow the child to visit or stay with the person
named in the order, or for that person and the child to otherwise
have contact with each other[7]
SPECIFIC ISSUE ORDER
An order giving directions for the purpose of determining
a specific question which has arisen, or which may arise,
in connection with any aspect of parental responsibility for
a child.[8]
PROHIBITED STEPS ORDER
Article 8 Children (NI) Order 1995; This is an order, which
places a specific restriction on the exercise of parental
responsibility eg. specifically prohibiting contact.
All of the above Article 8 orders are governed by what is
known as the welfare checklist at Article 3 Children (NI)
Order 1995. The matters, which must be addressed by the court
under the welfare checklist, are as follows;
1 The ascertainable wishes and feelings of the child concerned
(in light of age and understanding
2 His physical, emotional and educational needs
3 the likely effect on him of a change in circumstance
4 His age, sex, background and any characteristics of his,
which the court considers
relevant.
5 Any harm, which he has suffered or is at risk of suffering
6 How capable of meeting his needs is each of his parents…….
7 The range of powers available to the court under this Order…
In addition The Family Homes & Domestic Violence (NI)
Order 1998 inserted a new Article 12A into the Children (NI)
Order 1995 requiring the court in any private law case involving
domestic violence where a residence order or contact order
may be made, to consider the possible risk of harm to a child
in the event of such an order being made.
The Article 3 checklist may also therefore have to be reviewed
should the definition of parental responsibility be widened
to encompass an assessment by the court as to the effects
of the use of physical punishment.
FAMILY HOMES AND DOMESTIC VIOLENCE NI ORDER 1998
NON-MOLESTATION ORDER
Non-molestation orders can be made in respect of children
in their own right or orders can be made in respect of adults,
which cover children as well. The term molestation is not
defined in the legislation, but its dictionary meaning is
anything done to vex, harass or annoy. This is a much wider
and flexible ground than the grounds of actual violence or
threat of violence required for the old personal protection
& exclusion orders.
Chapter 5 The International Human Rights Context
QUESTION “Consultees are invited to comment on this
analysis of the requirements of international human rights
law”
ANSWER
THE HUMAN RIGHTS ACT 1998
The Human Rights Act 1998 came into force in N Ireland in
October 2000.It incorporates most of the rights under The
European Convention On Human Rights into our domestic law.
This means that our legislation must be interpreted in a way
which is compatible with these rights and that courts must
take the rights and the case law of The European Court Of
Human Rights into account when deciding cases, which come
before them.
The most relevant Article of the ECHR in relation to the
debate on physical punishment of children is Article 3, which
states that no one should be subjected to torture, inhuman
or degrading treatment or punishment.
Article 8 ECHR is also relevant as in addition to protecting
a child’s right to family life, it has been established
that it also protects the right to physical integrity. The
Article 8 argument has yet to be tried and tested in the courts
in the context of hitting children, but remains potentially
valid.
The United Nations Convention On The Rights Of The Child
The United Nations Convention On The Rights Of The Child
is an international treaty to which the UK Government is a
signatory. Although the UNCRC is not part of our domestic
law and therefore technically not arguable before our domestic
courts in the same way that the ECHR rights are, it has often
been referred to in recent judgements in children’s cases
before The European Court Of Human Rights. The rights enshrined
in the UNCRC therefore carry authoritative weight.
The most relevant article is Article 19 UNCRC, which says;
“State Parties shall take all appropriate legislative,
administrative, social and educational matters to protect
the child from all forms of physical or mental violence, injury
or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse whilst in the care of
parents, legal guardians or any other person who has care
of the child”
THE CHILDREN’S RIGHTS PERSPECTIVE
PHYSICAL PUNISHMENT OF CHILDREN IS INCOMPATIBLE WITH ARTICLE
19 UNCRC AND THE UN COMMITTEE ON THE RIGHTS OF THE CHILD HAVE
MADE A SPECIFIC RECOMMENDATION THAT PHYSICAL PUNISHMENT BE
BANNED
The United Nations Committee on The Rights Of The Child in
January 1995 voiced concern about the defence of reasonable
chastisement remaining available to parents and those with
care of a child. They stated that the imprecise nature of
the expression reasonable chastisement may pave the way for
interpretation in a subjective and arbitrary manner. They
were of the opinion that the defence was not compatible with
Articles 3,19 and 37 of the Convention.
They recommended that physical punishment be banned in families
and that the UK should consider undertaking an educational
programme in this regard. It was felt that such matters would
change societal attitudes to violence against children and
would foster acceptance of the legal prohibition of the physical
punishment of children.
One member of the Committee stated; “Certain states
have tried to distinguish between the correction of children
and excessive violence. In reality the dividing line between
the two is artificial. It is very easy to pass from one stage
to the other. It is also a question of principle. If it is
not permissible to beat an adult, why should it be permissible
to do so to a child?”[9]
Certainly from some of the reported cases we have read,[10]
it is apparent that unfortunately things can spiral out of
control easily and a slap on the head can lead to fractures
and even brain damage.
THE HUMAN RIGHTS ACT ARGUMENT
The case of A v UK has been dealt with in detail in the consultation
paper. The European Court Of Human Rights in this case recommended
that measures be taken to protect children from inhuman and
degrading treatment. The child in this case was caned repeatedly
and injuries were severe. The European Court stopped short
of stating that physical punishment per se was contrary to
Article 3, but clearly was of the opinion that in this particular
case the availability of the defence of reasonable chastisement
and the acquittal of the stepfather involved by using this
defence amounted to a failure by the State to protect child
A’s rights ie the law did not protect him adequately.
It is important to note that the applicant’s solicitors
in this case argued Article 8 and Article 14 Convention rights
as well as Article 3 rights. As there was a finding of a breach
of the child’s rights under Article 3 ECHR it was deemed
by the Court that no separate findings were necessary under
Articles 8 and 14.These grounds could however be potentially
argued on behalf of other children in future.
There have also been recent decisions in the cases of Z v
UK (the so called Bedfordshire cases) where awards in total
of 320 000 pounds were made by The European Court Of Human
Rights for inhuman and degrading treatment suffered by brothers
and sisters in their family. The abuse suffered by the children,
although it included some allegations of physical abuse included
neglect and emotional abuse, which happened over a number
of years. The young people argued that their rights had not
been protected as social services failed to take appropriate
action to help them and they sustained damage as a result.
These cases show a growing recognition of the importance
of the protection of children’s rights and indicate that
there is a clear positive obligation on the State to implement
an appropriate legislative framework to protect these rights.
We have noted and read the case of R v H (reasonable chastisement)
CA The Times 17 May 2001, which sets out criteria for deciding
whether punishment is reasonable .The use of these criteria
does not in our view provide sufficient protection to children
from physical punishment. We have particular concern about
the fifth criteria (added to those taken from A v UK) in relation
to the reasons given by the defendant for administering the
punishment. The question posed by the judge in terms of referral
to the Court Of Appeal also gives rise to concern;
“ In what respect, if any, the scope and definition
of the defence to a charge of assault occasioning actual bodily
harm of moderate and/or reasonable chastisement needs to be
modified in a case such as the present, for example, a father
hitting his four year old son with a belt across the back
several times causing actual bodily harm (bruising) as a punishment
for not being able or willing to write his name on being told
to do so”
If we are still in a legal position where such a question
has to be asked, this is surely a cause for alarm.
IN SUMMARY, THE STATE CAN BE LIABLE FOR THE INFRINGEMENT
OF A CHILD’S RIGHT UNDER ARTICLE 3 TO FREEDOM FROM INHUMAN
AND DEGRADING TREATMENT.THE DEFINITION OF INHUMAN AND DEGRADING
TREATMENT IS WIDENING AND IF OUR LAW DOES NOT PROTECT CHILDREN
FROM SUSTAINED PHYSICAL ABUSE BY PARENTS /CARERS THROUGH THE
CRIMINAL AND CIVIL LAW THERE WILL NO DOUBT BE FURTHER BREACHES
OF CHILDREN’S RIGHTS AND FURTHER CHALLENGES.
HUMAN RIGHTS, EQUALITY AND THE CHILDREN’S STRATEGY-
ADDITIONAL CONSIDERATIONS FOR NORTHERN IRELAND
THE EQUALITY PROVISIONS; SECTION 75 NORTHERN IRELAND ACT
1998
These provisions are unique to our jurisdiction and require
that public authorities have due regard to the need to promote
equality of opportunity between, amongst others persons of
different age.
The physical punishment debate will span legislation, which
is devolved and legislation, which is reserved (criminal justice
matters).
The Northern Ireland Office and all devolved Departments
including The Department of Finance & Personnel and the
Department of Health & Social Services Public Safety are
bound by the equality provisions. In our view, if the defence
of reasonable chastisement is left on the statute books children’s
rights to equality of protection from assault are breached.
Put simply if an adult became verbally abusive at your dinner
table and you reached over and hit him/her or even if you
leaned over the table and threatened to hit him/her, you could
find yourself in the Magistrate’s Court charged with
assault. However if your child is sitting at the dinner table,
won’t eat dinner, and shouts about how revolting it is
and you reach over and slap the child on the arm leaving a
red mark and bruising the next day this could well be defined
as reasonable chastisement /lawful correction of a bad tempered
child.
WE SEEK EQUALITY OF PROTECTION UNDER THE CRIMINAL LAW
FOR CHILDREN WHO ARE ASSAULTED OR SUBJECTED TO ANY OF THE
OFFENCES OUTLINED IN THIS PAPER.
CHAPTER 8, 9 DECIDING ON REFORM
PROPOSED REFORMS
QUESTION; does this chapter contain the full range of
law reform options open to us?
ANSWER: Yes, but consideration must be given to the appropriate
clauses for the protection of the physical integrity of children
contained in a Bill Of Rights For N Ireland
QUESTION; Do you agree with the assessment of The Office
Of Law Reform that further reform in addition to the limited
amendment of the defence of reasonable chastisement in the
criminal law in R v H is needed to bring us in N Ireland into
line with our human rights and equality obligations?
ANSWER: Yes, as stated above we are not of the opinion that
the criteria in R v H provide the requisite protection for
children’s rights in N Ireland.
QUESTION; Which option for reform of the defence of reasonable
chastisement do you think represents the best way forward?
Please give your reasons for your choice.
ANSWER: THE DEFENCE OF REASONABLE CHASTISEMENT AVAILABLE
UNDER SECTION 22 CHILDREN & YOUNG PERSONS ACT 1968 SHOULD
BE REPEALED.
We do not believe that limiting the defence of reasonable
chastisement or removing it for more serious offences would
adequately protect children’s rights. We do not agree
that the defence should, for example, continue to be available
for common assault charges.
There seems, in the English consultation paper, to be some
suggestion of the defence of reasonable chastisement being
removed for “more serious offences” and that the
defence should continue to be made available for common assault
applicable when injuries amount to no more than grazes, scratches,
abrasions, minor bruising and swelling, reddening of the skin,
superficial cuts or a black eye.[11]
In our view such an approach in this jurisdiction would be
seriously flawed and would be in breach of our obligations
under section 75 Northern Ireland Act, The Human Rights Act
1998 and the UNCRC.
We do not agree that the matter could be left to the discretion
of the courts and we do not believe that such an approach
would satisfy the requirements of the UNCRC or the ECHR as
incorporated by The Human Rights Act 1998. We are concerned
about the approach adopted in R v H and do not believe that
this provides children with adequate protection under the
law.
OUR VIEW IS THAT THE DEFENCE OF REASONABLE CHASTISEMENT NEEDS
TO BE REMOVED FROM ALL OFFENCES OF ASSAULT AGAINST CHILDREN.
NO OTHER OPTION WILL PROVIDE THE REQUISITE LEVEL OF PROTECTION
FOR OUR CHILDREN.
There are charging guidelines, which help prosecutors decide
what offence should be charged. It is essential these guidelines
should be open and transparent. We are not able to comment
on whether they need revised, as we have not seen them. We
do not know for example if there are specific references to
what constitutes reasonable chastisement.
SENTENCING GUIDELINES; the fact that an offence is committed
against a child can already be treated as an aggravating factor
in terms of the length of sentence.
CROWN PROSECUTION CODE
This Code is available in England, but not in Northern Ireland.
It is clear that generally, before any crime is prosecuted,
there are a series of conditions/ hurdles which the prosecutor
must satisfy himself about, not least whether the evidence
will be strong enough in court and whether it is in the public
interest to prosecute. We do not have the Code for the DPP
in N Ireland and can only assume that it is similar. If this
is the case, it is at this stage that consideration would
be given to whether the case was a “trivial smack”.
QUESTION; In your view, is there merit in including a
statement of rights and responsibilities of the type outlined
in this chapter in our family law?
ANSWER; Yes, we have set out below the type of amendment
to The Children (NI) Order 1995 which we would propose.
AN AMENDMENT TO OUR CIVIL LAW; THE CHILDREN (NI) ORDER
1995
This proposition is put forward in Christina Lyon’s
book Loving Smack, Lawful Assault[12] in that an amendment
to the criminal law is not enough on its own to lead to change.
She recommends a change to the civil law/family law as well.
She suggests possible amendments to the definition of parental
responsibility to include a role to provide the child with
proper care and security and to ensure that the child is not
subjected to corporal punishment or any other offensive treatment.
WE RECOMMEND THAT IN ADDITION TO THE REPEAL OF SECTION 22
CHILDREN AND YOUNG PERSONS ACT 1968 THAT THE DEFINITION OF
PARENTAL RESPONSIBILITY SHOULD BE MADE EXPLICIT UNDER OUR
CHILDREN (NI) ORDER 1995.
THE DEFINITION OF PARENTAL RESPONSIBILITY SHOULD ENCOMPASS
A SIMILAR STATEMENT TO THAT IN THE SWEDISH STATUTE;
“ CHILDREN ARE ENTITILED TO CARE, SECURITY AND A GOOD
UPBRINGING.CHILDREN ARE TO BE TREATED WITH RESPECT FOR THEIR
PERSON AND INDIVIDUALITY AND MAY NOT BE SUBJECTED TO PHYSICAL
PUNISHMENT OR OTHER INJURIOUS OR HUMILIATING TREATMENT”
It may be necessary to insert an additional clause in to
The Children (NI) Order 1995 similar to the clause under The
Family Homes & Domestic Violence (NI) Order 1998
which inserted 12A in to The Children (NI) Order 1995 requiring
the courts to examine specifically the issue of physical punishment
as part of the welfare checklist in cases where allegations
about use of physical punishment have been made.
6 Inclusion of a clause protecting a child’s inherent
dignity and physical integrity within our Bill of Rights for
Northern Ireland. This is an essential aspect of protecting
children from physical punishment in N Ireland and we have
a unique opportunity to effect change in this way.
WE RECOMMEND INCLUSION OF A CLAUSE IN THE NORTHERN IRELAND
BILL OF RIGHTS INCORPORATING ARTICLE 19 UNCRC.
This paper has focused on the legal issues and legal mechanisms
for reform. This must go hand in hand with education about
positive discipline and a call for resources for family support
services.
CHAPTER 10; EQUALITY IMPACT ASSESSMENT
In the survey of children’s views carried out by Save
The Children and National Children’s Bureau” It
hurts you inside”[13]children reported that smacking
made them feel
· Hurt, its hard and it makes you sore
· Unhappy, upset, miserable
· Horrible
· It makes you cry
· Is stings/itches, gives you a rash
· It makes you angry
· You feel bruised, bitten
· Makes you feel guilty/bad
· Embarrassed
· Banged with a hammer
· Bleeding
· Breaking your bones
· Not like your parents
· Sorry
· Like someone has punched, kicked you
When asked why children don’t “smack” adults
they responded;
· Too frightened
· Would get punished
· Adults don’t deserve to be smacked, they’re
more grown up
· Adults have permission to smack
· Adults are bigger
· Adults can hit harder
· Grown ups are older
· Its naughty/rude/bad manners
These responses illustrate the need for us to examine closely
the requirements imposed by the equality provisions of The
Northern Ireland Act 1998. How, ultimately can we defend the
use of physical force against children when we do not condone
it against adults?
QUESTION; DO YOU AGREE THAT THE MAIN EQUALITY IMPACTS
OF THIS ISSUE ARE ON CHILDREN AND THOSE WITH DEPENDANTS?
ANSWER; Our view is that the main differential impact is
with regard to age; as stated, only children are the recipients
of physical punishment.
QUESTION; DO YOU HAVE ANY COMMENTS ON THE OTHER EQUALITY
IMPACTS IDENTIFIED OR ANTICIPATED?
ANSWER; Information obtained in the course of recent research
carried out by Save The Children has indicated that there
is a lack of parenting resources for families from the Travelling
community, for fathers and for families of children with disabilities.
This suggests that parents of children in some of the equality
groupings may not have equal opportunities to access support
services.
A mapping exercise will be necessary to determine the exact
geographical locations of each of the parenting programmes/behaviour
clinics/family centres available, whether these are statutory
or voluntary and the types of help they offer
QUESTION; IN RELATION TO WHAT OBJECTIVES IS THERE A NEED
TO PROMOTE EQUALITY OF OPPORTUNITY IN RELATION TO PHYSICAL
PUNISHMENT?
ANSWER; The Children’s Law Centre believes that there
is a need to promote equality of opportunity in relation to
physical punishment in relation to;
Children and Adults should have equal protection under the
law from assault
Children in all the equality groupings should have the right
to be brought up in a safe and nurturing environment
Parents in all the equality groupings should have an equal
opportunity to access services and information, which will
help them provide a safe and nurturing environment for their
children.
QUESTION; IN ORDER TO MITIGATE THE EQUALITY IMPACTS IDENTIFIED,
OR TO BETTER PROMOTE EQUALITY OF OPPORTUNITY IN RELATION TO
THE OBJECTIVES YOU HAVE IDENTIFIED, WHICH OF THESE OPTIONS
DO YOU THINK HAS A ROLE TO PLAY?
ANSWER; a) abolishing the defence of parental reasonable
chastisement in N Ireland
c) including a statement of rights and responsibilities
in the legal definition of parental responsibility
d) Encouraging the development of parenting programmes
6 QUESTION; WOULD YOU CONSIDER ANY OTHER WAYS OF MITIGATING
THE EQUALITY IMPACTS OF PHYSICAL PUNISHMENT OR BETTER PROMOTE
EQUALITY OF OPPORTUNITY?
A major education programme in relation to positive discipline/
information leaflets about straightforward and workable alternatives
to physical punishment/information about available services
at all levels, must accompany legislative change.
Allocation of substantial resources to develop the services
already in existence, to create new services and to provide
positive information to parents about alternatives to physical
punishment
TARA CAUL
CHILDREN’S LAW CENTRE
NOVEMBER 2001
--------------------------------------------------------------------------------
[1] Childcare In Practice; The Physical Punishment Of Children;
Volume 7 No 3 September 2001, Dr Fionnuala Leddy; Using Non
Violent Means To Parent Children;
[2] An amendment made by The Criminal Justice Children (NI)
Order 1996 Sch 5 made the offence of common assault triable
summarily.
[3] Physical Punishment Of Children; Chris Barton; Family
Law; Volume 30, page257
[4] Barry Valentine; Booklet Of Criminal Offences in N Ireland
1998;it is submitted that because assault is also an indictable
offence that the maximum on summary conviction should be the
prescribed sum.
[5] Children (NI) Order 1995 Guidance and Regulations, Vol
1, para 2.2
[6] Article 8(1) Children (NI) Order
[7] Article 8(1) Children (NI) Order
[8] Article 8(1) Children (NI) Order
[9] CRC/C/SR176, 10 Oct 1994, See also Loving Smack or Lawful
Assault; Christina M Lyon, IPPR, 2000 page 25
[10] See Current Sentencing Practice, Sweet & Maxwell,
Part B2-7 Violence Against Children
[11] See Physical Punishment Of Children, Chris Barton, Fam
Law April 200, page 258 for comments in relation to charging
standards for Section 47 assaults occasioning actual bodily
harm
[12] As above
[13] It Hurts You Inside, Children Talking About Smacking
Save The Children and National Children’s Bureau Willow
& Hyder
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