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Domestic CP - September 1998
BBC News Online, London, 23 September 1998
Caning ruled illegal
A boy has been awarded £10,000 compensation after a court ruled that a caning from his stepfather broke the law.
The case is likely to lead to a ban on parents severely beating their children, although the UK Government says smacking is a separate issue.
The European Court of Human Rights in Strasbourg said the beating on the unnamed boy - who was eight at the time - breached a human rights convention ban on "inhuman or degrading treatment or punishment".
The government and children's rights groups welcomed the decision and ministers are already planning to change the UK law.
But the ruling was criticised by some Conservative MPs, with one suggesting the court should take "a running jump".
The judges heard that the boy was beaten with a three-foot long garden cane. Some of the blows were inflicted directly on to bare skin.
The stepfather was cleared of assault in 1994 after arguing he practised "reasonable chastisement" under the 1933 Children and Young Persons Act.
But the boy took his case to the European court.
The European judgment said the beating amounted to "considerable force" on more than one occasion.
The boy was awarded £10,000 compensation and £20,000 legal costs.
The judges said the UK Government was responsible because the law "did not provide adequate protection to the applicant".
It quoted the European Convention of Human Rights which says: "No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Health minister Paul Boateng welcomed the ruling as "common sense", but emphasised the difference between smacking and beating.
"This has nothing to do with the issue of smacking. The overwhelming majority of parents know the difference between smacking and beating.
"They know how to ensure good social behaviour in a loving and caring way. We respect that right."
Bans on all corporal punishment of children have already been introduced in many European countries, although opponents say they have had little effect.
But the National Children's Bureau is fully behind a total ban, which is says will "change attitudes and practice and thus reduce the need for prosecutions and other formal interventions in families".
Members of the Opposition were scathing about the judgment.
Conservative leader William Hague told BBC Radio 2's Jimmy Young Show: "We've taken the nanny state too far when we have to have court rulings about what people can do with their own children in their own home."
Tory backbencher Bill Cash said it was an "ivory tower" decision, adding that children needed "proper discipline".
His colleague Gerald Howarth added: "This court is now sticking its nose into areas of the most minute detail and the time has come to tell it to take a running jump."
But Andrew Rowe, Conservative joint vice-chairman of Westminster's all-party group on children, welcomed the ruling.
Mr Rowe is also a trustee of the National Society for the Prevention of Cruelty to Children and warned that the ruling would have to be interpreted "sensibly".
The Daily Telegraph, London, 24 September 1998
The inhuman beating that makes reform inevitable
By Terence Shaw, Legal Correspondent
THE repeated beating of a nine-year-old boy by his stepfather with a garden cane was inhuman, degrading punishment in breach of the boy's human rights, the European Court of Human Rights in Strasbourg ruled yesterday.
Its judgment means the Government will be forced to amend the law to give children greater protection from being beaten or chastised by their parents under the claim that they are only inflicting reasonable punishment which is a defence to an assault charge. But the Strasbourg ruling does not outlaw any corporal punishment by parents and does not affect their rights to slap their children.
In their judgment yesterday, nine judges held that the beatings, which led to the stepfather being prosecuted for assault, was a clear breach of the boy's rights protected by Article 3 of the European Human Rights Convention. They awarded the boy, who is now 14 and whose anonymity is being protected by the court, damages of £10,000 against the British Government and legal costs and expenses of £20,000.
The case was taken to Strasbourg by the boy, with the backing of his natural father, after his stepfather had been prosecuted and acquitted by a majority jury verdict in February, 1994, on a charge of assault occasioning actual bodily harm. At his trial, the stepfather did not dispute beating the boy but claimed that he was only inflicting reasonable punishment which was a defence to a charge of assault by a parent under English law. He claimed that the punishment had been necessary and reasonable as the boy was "difficult" and had not been responding to parental or school discipline.
In bringing his case against the Government in Strasbourg, the boy had complained that English law had failed to protect him against the ill-treatment by his stepfather. When the case was referred to the court in October, the Government did not contest the earlier finding of the European Commission of Human Rights that there had been a violation of Article 3.
But the court considered it necessary to examine the issues while stressing that its examination was limited to the case before it. The judges were told the boy had been beaten with a three-foot garden cane and that some blows were inflicted directly on to bare skin. The boy had been examined by a paediatrician who had found several bruises, indicating that he had been beaten with the cane more than once and with considerable force. At his stepfather's trial, the boy said the beatings had "hurt a lot", particularly when he was hit on the legs.
In their judgment yesterday, the Strasbourg judges, who included the British judge, Sir John Freeland, found that the boy's ill-treatment by his stepfather had been "sufficiently severe to reach the level prohibited by Article 3". They said the assessment whether ill-treatment reached the minimum level of severity to be outlawed under Article 3 depended on "all the circumstances of the case, such as the 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".
The judges ruled that the Government should be held responsible because "children and other vulnerable individuals in particular were entitled to protection, in the form of effective deterrence, from such forms of ill-treatment. English law, which provided that the prosecution had to prove that an assault on a child went beyond the limits of reasonable punishment, did not provide adequate protection to the applicant."
After ruling there had been a breach, the judges did not find it necessary to consider the boy's complaint that the inadequacy of the protection against the ill-treatment he suffered was a breach of his right to respect for his private life under Article 8.
The Save The Children charity welcomed the ruling and said: "Every child has the right to a life free from violence. Millions of children in some European countries are already protected by a ban on all physical punishment. In countries which banned physical punishment some time ago levels of violence against children are lower than in Britain, there are fewer prosecutions for violence against children and fewer children taken into care."
Some opponents of a Europe-wide ban say legislation in certain countries has had a negative effect and the number of non-accidental injuries to children have risen.
The Guardian, London, 24 September 1998
Parents to keep right to smack
By Clare Dyer, Legal Correspondent
Parents in Britain are likely to be banned from caning or beating their children following a landmark ruling yesterday from the European Court of Human Rights in Strasbourg. But the Government plans to preserve the right to smack and deliver other mild physical chastisements.
The Government accepted that it was bound to change the law after nine judges ruled unanimously that a boy's caning by his stepfather violated his right to protection from "torture or inhuman or degrading treatment or punishment". It will now grapple with the difficulties of drawing the line between acceptable and unacceptable punishments.
Its decision not to abolish corporal punishment completely will bring it into conflict with an influential coalition of 140 child welfare groups, including most of the leading organisations in the child protection field, which want children to be given the same protection from assault as adults. That would mean a legal ban on corporal punishment, though in practice trivial assaults such as smacking would not be prosecuted.
The 14-year-old boy, who can be named only as A, was repeatedly beaten by his stepfather from the age of five to eight with a three-foot garden cane. The strokes, at least some of which were inflicted directly on the skin, caused bruises and linear scars.
His stepfather was acquitted of assault causing actual bodily harm after arguing that he had only administered "reasonable chastisement" as allowed by law.
The court held that Britain breached the European Convention on Human Rights by allowing such a wide defence, thereby depriving children of protection from serious assaults. The judges awarded A £10,000 compensation and £20,000 legal costs.
In a series of cases over the past decade, parents, step-parents and teachers who have beaten children with belts, canes and electric flexes have been acquitted by juries after pleading reasonable chastisement, a defence which dates back centuries.
After a finding last November by the European Commission of Human Rights that A's human rights had been violated, the health minister, Paul Boateng, acknowledged that the boy's punishment was "cruel, inexcusable and has no place in a civilised society". He promised to consult interested parties on how the law should be changed.
The 140-group alliance, including Barnardo's, the NSPCC, Save the Children, the National Children's Bureau and the Royal College of Paediatrics and Child Health, issued a statement yesterday calling for the outlawing of all corporal punishment of children.
The alliance said: "We believe it is both wrong and impracticable to seek to define acceptable forms of corporal punishment of children. Such an exercise is unjust. Hitting children is a lesson in bad behaviour."
It argued that while the change would technically criminalise smacking, in practice this would not be prosecuted. On the other hand, the move would clarify the law and ease prosecution in serious cases.
But Mr Boateng signalled yesterday that the Government was unconvinced. "This Labour government believes in parental discipline," he said. "Smacking has a place in that. Our law will do nothing to outlaw smacking.
"A line will have to be drawn, but it is a line which will be drawn clearly and firmly in order to underpin parental discipline, not to undermine it."
The shadow health secretary, Ann Widdecombe, said: "Parents have got to be allowed to employ reasonable punishment. If we start to try and over-define and be over-prescriptive, I think we will run into trouble."
The Government plans to issue a consultation paper setting out options for change to the law on reasonable chastisement. One might be to outlaw physical punishment with an implement, or all physical punishment except smacking.
Peter Carter QC, a criminal law specialist and joint author of a leading text on offences of violence, said it would be difficult to draw a line. "The sensible thing would be to do what they've done in schools and outlaw physical punishment while allowing physical restraint."
Corporal punishment in state schools has been illegal since 1987. The School Standards and Framework Act 1998, which received the royal assent in July, extends the ban to private schools and nursery schools.
The committee on the rights of the child, the international body which oversees implementation of the UN Convention on the Rights of the Child, recommended three years ago that Britain abolish corporal punishment in all settings, including the family. Eight European countries prohibit all corporal punishment - Austria, Croatia, Cyprus, Denmark, Finland, Latvia, Norway and Sweden - and several others are considering a ban.
A's lawyer, Allan Levy QC, said: "Why shouldn't children have the same protection of adults?"
© Copyright Guardian Media Group plc.1998
The Guardian, London, 24 September 1998
Minister pledges to spare the rod but draw a line
Clare Dyer and Sarah Hall on the implications of Strasbourg's ruling on parental beatings
Even before the case of A, the nine-year-old beaten by his stepfather with a 3ft garden cane, reached the European Court of Human Rights yesterday, the Government accepted it would have to change the law on a parent's right to physically punish their child.
But as Paul Boateng, the junior health minister, pledged to tighten legislation, debate raged over the thorny issue of where to draw the line. Should all forms of physical punishment be banned? Was smacking all right?
The ruling does not require all physical punishment to be banned. And the Government, while promising to consult parents as well as lawyers, is keen to strike a balance - outlawing brutal beatings while preserving parents' rights to smack and administer physical chastisement. "This government believes in parental discipline," Mr Boateng said within hours of the judgment. "Smacking has a place within that, and our law will not change in order to outlaw [it]."
But child welfare organisations - including the NSPCC, Save the Children, National Children's Bureau, Barnardo's, and the British Association of Social Workers - together with the Royal College of Paediatrics and Child Health, believe the definition should be more stringent. Children should be given the same protection as adults against assault, they argue. All corporal punishment should be outlawed.
At present, British law - dating from 1860 - allows parents and others in loco parentis who are charged with assault to defend themselves by asserting that they practised "reasonable chastisement". Under this get-out, juries often acquit parents who belt and cane their children, producing bruises, welts and scars. In the case of A, the stepfather was found not guilty of assault causing actual bodily harm.
In the run-up to yesterday's hearing at the Strasbourg court, the Home Office offered to alter the law to incorporate the European Convention's wording that "no one shall be subjected to torture or to inhuman or degrading treatment". It argued that juries should be allowed to interpret this in line with social mores. But A's lawyers said this offered insufficient protection against parental beatings.
A 140-strong alliance of children's welfare groups argued yesterday that the only way to avoid parental beatings was to ban corporal punishment outright. But it stressed that the new move - backed by the National Commission of Inquiry into the Prevention of Child Abuse - would not prevent gentle smacking because, as with adult victims, only those committing serious assaults would be prosecuted.
The alliance said: "While technically this would criminalise any assault of a child, trivial assaults, like [those] between adults, would not be prosecuted. It would, on the other hand, ease prosecution in serious cases, and eliminate dangerous confusion."
Save the Children, went further. "We think all physical punishment should be outlawed," said spokeswoman Joanne Bailey. "How can you build a non-violent society, and teach children to respect each other's physical integrity if you hit them?"
She said that in countries which banned all physical punishment against children, levels of violence against them were lower than in the UK, there were fewer prosecutions for violence and fewer children in care.
The British Association of Social Workers also took a rigorous line, insisting that the only occasion when smacking was allowed was when guarding a child from danger. Chris Andrews, of the association's children and families' subcommittee, said: "Clearly, a law would have to be very carefully worded and framed so you don't have parents fearing they can't restrain their children."
He added that, with the banning of corporal punishment in schools, children's homes and foster homes, teachers and child care workers had succeeded in finding alternative forms of discipline.
But Moira Gibb, of the Association of Directors of Social Services, said: "Of course it's permissible to smack children - the vast majority of parents do - but we have to make a distinction between a quick tap on the bottom and beating."
She argued that there was a need to strike a balance between protecting children's rights and ensuring parents adequately disciplined their child. "Personally, I am not in favour of smacking but there are a lot worse things... Not being properly disciplined is a lot more damaging for a child in the long run."
She also warned that legislation should not be rushed through in a frenzied reaction to yesterday's ruling. "We have to hang on to the generalities rather than the individual cases such as this one, and not have a knee-jerk reaction. What we need is a law which moves forward people's thinking - and creates a culture in which violence against children isn't accepted - rather than simply protects the very small number of children that are going to be beaten.
"Most parents smack their children and we will only improve that situation if we spend time re-educating them, giving them other tools to discipline their children, before introducing laws."
A consultation paper, outlining options, will now be published by the Government. One possibility is to ban punishment causing actual bodily harm.
© Copyright Guardian Media Group plc.1998
The Daily Telegraph, London, 24 September 1998
Parental right that smacks of a bygone age
By Colin Randall
THE idea that juvenile naughtiness inevitably leads to corporal punishment was, until recent years, so firmly rooted in the British consciousness that children's comic writers had no need to labour over their story endings.
"You used to be able to write the last line first," Ewan Kerr, editor of the Beano recalled at the periodical's 60th birthday celebrations in July. "Because it was always a spanking."
No such expression of adult disapproval has befallen Dennis the Menace and Minnie the Minx - or, at school, the Bash Street Kids - since the Eighties.
For some campaigners against the physical punishment of children, yesterday's landmark decision on the issue from the European Court of Human Rights will have been a case of life at last beginning to imitate art.
The ruling was the latest stage of a process that can be traced back more than two centuries. In 1783, Poland became the first country formally to ban the beating of children in school. Even then, it was thought that it had never been permitted in certain other countries, notably Greece, Italy and Luxembourg. [Nonsense - C.F.]
Seventy-seven years later, the right of British parents to administer corporal punishment was enshrined in the "moderate and reasonable" principle established by Chief Justice Cockburn. It was the Cockburn judgment that, under English law, provided the basis for the stepfather's acquittal on an assault charge. He contended that his use of a three-foot long garden cane to punish the boy, now 14, constituted "reasonable chastisement" as permitted by the law.
Flogging in the Army was abolished in 1906, though it remained a penalty deemed permissible in law for sailors until 1957. [No, 1967, if we mean caning of junior seamen. - C.F.] Birching ended in 1948, and though the Isle of Man statute books defiantly retain the sanction, the strictures of the European Court of Human Rights has [sic] effectively ensured that no criminal has been subjected to such punishment since 1976. Caning and other forms of corporal punishment stopped in state schools from 1987. The ban was extended to the fee-paying sector earlier this year.
But discipline in the home has always presented legislators and children's rights campaigners with trickier territory. A 1980 survey found that 77 per cent of American parents believed spanking or slapping a child of 12 was normal, while 71 per cent considered it "good". Tests of British public opinion have revealed similar strength of the parents' right to smack. Yet as parental as well as school authority over unruly children has gradually been eroded, domestic incidents that were once commonplace and unremarkable have found their way into the criminal courts.
In 1993, a Hampshire mother-of-two was convicted of common assault after spanking her nine-year-old daughter's bare bottom with a slipper for stealing sweets. On appeal, Judge Ian McLean, who also has two daughters, quashed the conviction, saying: "If a parent cannot slipper a child, the world is going potty."
In Sweden, the provision in family law allowing physical punishment was deleted in 1966, and the practice was prohibited in 1979. Now children in Austria, Croatia, Cyprus, Denmark, Finland, Latvia and Norway are also legally protected from being smacked.
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