The Children Are Unbeatable! Alliance campaigns for the UK to satisfy human rights obligations by modernising the law on assault to afford children the same protection as adults.

Children Are Unbeatable! Alliance - News


Submission to the Victoria Climbie Inquiry by the 'Children are unbeatable!' Alliance

The 'Children are unbeatable!' Alliance includes over 300 organisations, and as many prominent individuals (see attached list of aims and membership). The Alliance believes that the Government should outlaw all forms of corporal punishment by removing the existing defence of "reasonable chastisement", giving children the same legal protection against assault as have adults.

This submission argues first that the draft framework for the Inquiry should have an additional heading and, second, proposes the outlawing of corporal punishment using the draft framework's current headings. Representatives of the Alliance, which includes major children's organisations, four Royal Colleges of Health, BASW, BASPCAN, National Women's Aid Federations and major parent organisations, would welcome an opportunity to give evidence to the Inquiry.

1. The draft framework for Phase Two - a new heading

The Children are unbeatable! Alliance urges the Inquiry to add to the framework of headings for Phase Two the following additional heading (or similar version):

Children's human rights and the law: is the current framework of law adequate to protect all children from risk of abuse?

The following arguments support this recommendation:

2 "Outlawing corporal punishment" as a proposed topic

We also propose that the Inquiry consider as a topic: "Giving children the same legal protection against assault as adults have, and ending the legal defence of 'reasonable chastisement.'" The topic could be considered either under the new heading as proposed above, or under headings A, B or D.

As most of our arguments under these three headings will overlap with each other, we will briefly outline the reasons why each heading is appropriate and then follow with further general arguments that should be read in relation to all three headings.

Why outlawing corporal punishment is an appropriate topic for the draft headings A, B and D

A Discovery and Inclusion
How can we ensure that all children receive the general services (education, health care etc) to which they are entitled?

Above all, children are entitled to services that protect their lives and prevent physical and mental harm to them. Because children are dependant on their carers, children are also entitled to state services that can effectively check the rights and powers of those that care for them. While the law allows carers to hit children the state is failing to provide them with these services.

This heading also raises the question of discrimination. Children as a group are discriminated against as the only section of the population that can be lawfully hit. In addition, while the concept of "reasonable chastisement" remains, an unacceptable cultural relativity may prevail. For example, some parents and professionals may (and do) consider that is "reasonable" for, say, a West African or Caribbean or Romany parent to apply harsher forms of physical punishment than would be considered reasonable by indigenous British families, because this is part of these other societies' "child-rearing traditions". We are confident that the Inquiry will make clear that such cultural relativity is discriminatory. It should therefore recommend that the relativistic concept of "reasonable chastisement" is equally unacceptable under UK law.

B. Identification
How can we ensure that children in need are promptly and accurately identified?

The particular emphasis of this Inquiry must be "children in need of protection", and it is surely obvious that if all physical punishment were banned it would be far easier to identify children who are being physically abused.

"Children are unbeatable!" does not propose changes to the current statutory criteria for child protection registers or care orders or the ordinary laws on assault. Therefore, light occasional smacks would not make parents liable for such interventions, nor would trivial smacks expose parents to criminal prosecutions. Smacking parents would however be visible to the other adults in the child's life (professionals, friends, relatives, church members, neighbours) as parents who were acting unlawfully, rather than parents who were exercising their legal rights. This would encourage concerned non-professionals to report worries to the authorities, and make it easier for professionals to raise concerns and offer help to parents who hit their children. A law against all forms of physical punishment would also make it easier for physically abused children themselves to identify themselves as victims rather than, as so many sadly do, as bad children or culprits. Indeed, if the new law was accompanied by the public education campaigns on positive discipline that the "Children are unbeatable!" also promotes, parents who are having difficulties refraining from physical punishment will refer themselves to statutory and voluntary projects for parents. We describe below the very encouraging example of Sweden, which banned smacking over twenty years ago.

Removing the defence of "reasonable chastisement" may result in an apparent increase in the numbers of abused children - not because families are being persecuted by the state for trivial smacks, or because banning smacking has increased abuse, but because the hidden numbers of children who suffer significant harm without detection, like Victoria Climbie, would be exposed. (We note, for example, that Sure Start projects are alleged to have resulted in an increase of numbers of children on child protection registers despite one of Sure Start's targets being the reduction of such numbers. This is not because Sure Start projects cause parents to abuse their children but because abused children have become more visible.)

D. Service delivery
Is it necessary to make changes to the mechanisms by which the agencies concerned attempt to ensure that children receive the services they need? If so, what changes are necessary?

Outlawing physical punishment is a fundamental and necessary change to improve the mechanism of the child protection system. As we have explained above, such a change would, at a stroke, transform the work of staff working with children at risk of physical abuse - whether in the police force, hospitals, schools, nurseries or social services. They would find it infinitely easier to discuss the question of child protection with parents, to offer them help and to warn them against the dangers of hitting children. They would also find it easier to explore the possibility of physical abuse with the children themselves, since they could start from the straightforward premise that all hitting is unlawful rather than having to pick their way through the difficult concept of "reasonable" and "unreasonable" hitting. Prosecutions should also become easier and more straightforward with the removal of the defence.

The following sections are all relevant to headings A, B and D:

Would Victoria Climbie have been saved by a law against physical punishment?

This is, of course, a matter of speculation - we cannot say absolutely that she would have been saved. Nor do we wish in any way to excuse the negligence of those professionals who failed to rescue her. What Victoria was suffering towards the end of her life was torture, not chastisement of any definition of reasonableness, and clearly her treatment could and should have been stopped by the responsible social workers, police, doctors and religious leaders involved in her life.

Nonetheless there are indications that such a law might have made the difference in her case and the following are some of the reasons why it would help other children at risk of physical abuse:

  1. Escalation from smacking to significant harm
  2. Physical punishment - the unacknowledged factor in child abuse
  3. Societies without child abuse deaths - the Swedish experience
  4. Children's human rights to protection from physical assault
  5. Only a total ban on smacking will work: the Government must lead, not follow, public opinion on this matter

1. Escalation from smacking to significant harm
The American Academy of Pediatrics has officially recommended parents not to smack their children. It notes: "Although spanking may immediately reduce or stop an undesired behaviour, its effectiveness decreases with subsequent use. The only way to maintain the initial effect of spanking is to systematically increase the intensity with which it is delivered, which can quickly escalate into abuse" (Guidance for effective discipline AAP, 1996). In other words, carers become desensitised to what they are doing and frustrated by the diminishing returns, don't notice that light slaps have turned into hard blows. Thus we note that Manning's initial assaults on Victoria took the form of "slapping" for disciplinary purposes, but that these slaps then escalated to punches and sadistic beatings with bicycle chains and belts, with him commenting, grotesquely, on her imperviousness: "You could beat her and she would not cry. She could take beatings like anything".

The Department of Health commissioned research in the 1990s into the prevalence of corporal punishment in the home. The research involved interviews with over 400 ordinary families living in South East England, and found very high levels of physical punishment - three-quarters of the mothers of one year-old babies admitted to smacking them in their first year and 97% of the four year-olds were physically punished. The research also exposed the frequency and intensity of this punishment: in families in which both parents were interviewed, over a third of the children (35 per cent) were hit weekly or more often by either or both parents. A fifth of children had been hit with implements, usually slippers and wooden spoons, and over a third of all the children had at some time been punished "severely", defined by the research as punishments "that were intended to, had the potential to, or actually did cause physical and/or psychological injury or harm to the child".

We must emphasise that this research was not looking at problem families with children identified by social services, but at ordinary British parents who probably just did not notice that their "little taps" had slid along the scale to unacceptable and damaging assaults. Proponents of smacking have repeatedly insisted that "normal" parents know the difference between smacking and abuse - that it is just a matter of common sense. This confidence is clearly misplaced if at least a third of parents' punishment escalates into potentially injurious actions.

2. Physical punishment - the unacknowledged factor in child abuse
This Inquiry would be the first child protection inquiry in the UK to recommend the outlawing of all physical punishment of children. We are confident that future social historians will ask with astonishment why the dozens of official inquiries into battered children that preceded this one that did not make such a simple and obvious proposal.

The reasons why they did not are complex, but certainly include the fact that this is a deeply personal issue. Most child protection staff and most child abuse inquiry team members either smacked their children or were smacked themselves as children. No-one wants to condemn themselves or their parents, so from an early age tolerance of corporal punishment is "internalised" and made socially acceptable. Nor, indeed, does "Children are unbeatable!" condemn parents who smack, since they are simply acting in accordance with social expectations. What we do condemn are those who, in the face of all the evidence, persist in defending this outdated tradition.

We also criticise those who insist that "physical punishment" is kept in a separate box from "child abuse". Of course light smacks are not as injurious as heavy blows, and of course it is counter-productive to call 97% of the country's parents "abusive", but anyone who is interested in preventing child abuse must look at where abuse starts, and much of it starts, both in terms of the abuse itself and the abuser's own history, with these light smacks. And yet many in the child protection world refuse to acknowledge a connection. Because of this blinkered approach there has been little systematic research into the relationship between abuse and lawful discipline. However there has been some - for example, a American review of 66 cases of child abuse concluded that child abuse most often occurs as "extensions of disciplinary actions which at some point and often inadvertently crossed the ambiguous line between sanctioned corporal punishment to unsanctioned child abuse" (Child abuse: an interactional event, A Kadushin et al, 1981, Colombia University Press).

In 1990 Approach Ltd conducted a survey of child protection co-ordinators in UK social services. 82 authorities responded. They were asked to what extent parents suggested the abuse started with "ordinary" physical punishment or justify what they did as lawful chastisement. A fifth of the respondents were unable to answer; of those that did, a quarter said "hardly ever" (i.e. under 10 per cent); the majority said "sometimes" or "often". The respondents also reported the difficulty they had in discouraging parents from using physical punishment given the current legal and social approval of hitting children.

Some of the accompanying comments demonstrate the difficulties the child protection world had with the concept, such as: "'Over-chastisement' has been the subject of considerable debate over the years with an apparent view of some professionals that such incidents should be 'outside' child protection procedures" (Derbyshire); or: "The Department has at times taken cases to court and the magistrates have felt that the 'punishment' was appropriate and have dismissed the social services standpoint on the matter" (Bolton)

We believe that some of these findings would be different a decade later - with greater clarity and more courage in ACPCs' approach to physical punishment - but it is clear that a conceptual separation between "bad" and "good" hitting of children still persists in the child protection world. We note that Working Together to Safeguard Children does not mention physical punishment at any point, either in relation to identification of abuse or preventive remedies. Perhaps the most striking example of this blindness is in relation to domestic violence, where the Government declares its support for the policy of "zero tolerance" of all forms of domestic violence no matter how slight (Living without fear UK Government Cabinet Office/Home Office report, 1999) and yet, in fact, so notably fails to practice what it preaches in relation to the most prevalent form of domestic violence.

This Inquiry is strongly urged to remove the blinkers from the child protection system, to acknowledge the connections between physical punishment and abuse and to recommend, as one obvious preventive measure, that it be as unlawful to hit a child as it is to hit anyone else.

3. Societies without child abuse deaths - the Swedish experience
The question "does banning smacking prevent child abuse?" is difficult to answer. One problem is that any focus on the ill-treatment of children is likely to "create" rising levels of reported abuse. The experience of Sure Start, discussed above, is one illustration; the experience of schools tackling bullying is another. Any school that asks pupils to report bullying invariably appears to have higher levels of bullying than those schools that deny it exists. We know that the real numbers of abused children are much higher than those that come to official attention. Had Victoria not died, it is possible that she might still be suffering, unnoticed, today.

Thus in the decade after Sweden fully outlawed smacking and every other form of physical punishment (technically, confirming that they are criminal offences) in 1979, the country saw rising levels of reported child abuse. This rise also occurred in other developed countries because child abuse was still in the process of being "discovered". But - perhaps the most important "but" of this submission - in that same decade not one single child in Sweden died of physical abuse at the hands of his or her carer. In the following decade, only four children died in Sweden from physical abuse in the years up to 1995, never more than one a year. In this country at least one child dies a week from physical abuse.

Notwithstanding the fact that Sweden is a smaller country with far superior welfare support systems for children and their families, the banning of physical punishment must surely play a significant part in this absence of deaths. Sweden's law against smacking is vigorously supported by government measures, for example information campaigns, amongst other things on milk cartons read by parents and children at the breakfast table; parent-education lessons, which all first-time parents receive, and immigrant-induction programmes. Three years after the ban 99 per cent of the population knew about the ban - "a level of knowledge unmatched in any other study of knowledge about the law in industrial societies" (A generation without smacking, Joan Durrant, Save the Children UK, 1999, a detailed review of research into the effects of Sweden's ban). A recent survey showed that only 6 per cent of under-35 year-olds supported even the mildest form of physical punishment.

Given the fact that banning smacking appears to help save children's lives, the next question may be, is there a price to pay? For example, are there more Swedish children in care? No, levels of children in both voluntary and compulsory out-of-family placements have fallen sharply since the ban. Are Swedish children out of control? No, in most comparators of youth behaviour, such as crime, drug abuse, hooliganism and suicide, Swedish children not only fare better than UK children, the rates within Sweden have decreased over the period of the ban. Research also reports that the 1979 law focused parents' attention on effective forms of discipline, so that Swedish parenting became less haphazard and impulsive (Reducing violence to US children: transferring positive innovations from Sweden A Haeuser, Wisconsin University, 1988). Are smacking parents persecuted by the courts? No, despite some well-publicised claims by a minority group of Christian fundamentalists (whose case illustrations reveal quite reasonable forms of state intervention). Though, as we have seen, reports of child abuse rose in Sweden after the ban, the proportion of those prosecuted did not - the trend is a declining one, and sharply so where parents in their twenties are concerned. These are the parents who were themselves brought up in a society without smacking.

We do not claim that all the successes of Sweden are due to banning smacking, since so many other factors are as important. But we do ask this Inquiry to accept that, had Victoria Climbie been sent to Sweden instead of the UK, she would have stood a hugely higher chance of being alive today because of the ban on physical punishment. All immigrants with children are informed that, whatever their traditions, smacking is against Swedish law, professionals working with children have no hesitation about raising the matter with immigrant parents and all members of Swedish society know it is banned, most strongly and overtly disapproving of its use.

Given how controversial the issue is, the Inquiry may be tempted to say that banning "trivial smacks" is not relevant to Victoria's case. But this would be seriously failing those many children in the UK who die from physical punishment "gone wrong". Having a steady rate of children battered to death is not some sad fact of life. The Swedish expectation of no such deaths must be our aim.

4. Children's human rights to protection from physical assault
Children in the UK are entitled under national and international law to:

We do not expect the Inquiry to embark on detailed examination of human rights law. As it knows, the European Court of Human Rights has required that UK law on physical punishment be remedied so as to prevent breaches of article 3 like that in the A v UK, where a boy was caned by his stepfather, though Court judgements have not yet explicitly required Council of Europe states to ban smacking. However the Inquiry should note that the Court has clearly upheld the rights of states to do so - for example rejecting an application by Swedish fundamentalist parents objecting to the Swedish ban as a breach of their rights to religious freedom and family life. The Court has also ruled that not only must the State itself refrain from causing children to die or be injured, it must also take active steps to prevent them being killed or injured by others (see Osman v UK (1998), and Z and others v UK (2001)).

Increasingly the European Court looks to the UN Convention on the Rights of the Child to interpret children's rights under the European Convention. Here the imperative to ban all corporal punishment is quite clear - the Committee on the Rights of the Child has recommended that the UK take steps, including legal reform, to prohibit physical punishment in the home and has made similar recommendations to over 110 other countries at all stages of development.

This Government's fear of being a "nanny state" is at odds with its desire to be a champion of human rights - such champions are invariably labelled as interventionist states, nannies and so forth. Children may not be voters but they are still holders of human rights and, as they are among the weakest members of our society, they particularly need these rights to be upheld in enforceable law. Protecting "parents rights to smack their children" is simply breaching children's rights not to be hit.

5. Only a total ban on smacking will work: the Government must lead, not follow, public opinion on this matter.
At the time of making this submission we have only just learned that the Government proposes to do nothing to reform the law in this area. It has, instead, claimed that sufficient changes have already occurred because the European Convention of Human Rights has been incorporated into domestic law by the Human Rights Act and because the courts now have to consider certain factors when deciding whether punishment amounts to "reasonable chastisement", namely the punishment's nature, context, duration and physical and mental effects and, in some instances, the sex, age and state of health of the victim.

This response is a serious act of negligence towards children who need protection, including the boy whose rights were violated in the first place. All courts, when determining whether a punishment is reasonable, do and always have had regard to these "factors", since they are simply the basic facts of the case which the prosecution will present. Certainly the British jury that acquitted the stepfather in the A v UK case were fully informed about the punishment's nature, context, duration and physical and mental effects and the sex, age and state of health of the boy, including the fact he was asthmatic, eneuretic and had special educational needs and was regularly and repeatedly beaten so as to cause extensive bruising. It still found the caning was "reasonable chastisement".

There are no grounds for believing that the Human Rights Act's explicit prohibition on "torture or inhuman or degrading treatment or punishment" would make any difference to a determination of reasonableness, because a reasonable act of chastisement must logically preclude it being inhuman or degrading. Since the Act was incorporated there have been at least three acquittals on grounds of "reasonable chastisement" which we are confident the European Court (not to mention police and social and prosecution services) would find was violated the children's rights. The box provides summaries of press reports of these cases.

Press reports on three acquittals on grounds of "reasonable chastisement" since incorporation of the Human Rights Act

A stepfather was acquitted for slapping his ten-year old stepson twice across the cheek, causing bruising, for stealing from his teacher. The man admitted he slapped him out of frustration and with hindsight may have used too much force but pleaded not guilty on the grounds of reasonable chastisement. The man worked with children and would have lost his job if convicted. (Bath Chronicle, 20/10/2000; Western Daily Press 21/10/ 2000)

A father was cleared of assault in a Skye court by a Sheriff who said he considered the father's actions "wholly justifiable". The man was charged with assault after striking his 12 year-old daughter in the face, causing it to swell and making it difficult for her to move and open her jaw. The father took her to hospital where the doctor who examined her was so worried by the father's attitude he called the police. The father is a "Wee Free" kirk member. He told the court that he had "measured" the blow: "I did it for her own good. I used to play rugby. I know how to take a man's head off. I hit her with the back of my hand. It was a small slap." (Sunday Mail, 8/4/2001)

After two trials (the first ending in a hung jury, the second aborted half way through) a couple, both senior social workers, were acquitted of assault for slapping their two foster children, an eight year old girl and nine year old boy. The girl was slapped across the face by the foster mother and the boy struck at least twice across his upper thighs by the foster father; the bruises were still clearly visible a week later. The punishment had been a "last resort" and "impulsive" response to the children's admission that they had been playing sex games which had occasionally involved the couple's three year old son. They were apparently acting what they had seen their natural mother do - a crack addict who used to have sex in front of the children. The judge urged the jury to use their "common sense" and praised the system that finally acquitted the couple. (Birmingham Post and The Times 28/10/2000; The Herald, 26/10/2000)

The Inquiry might ask: "Why have these cases not been taken to the European Court?" The answer is that such children, unlike other victims of human rights' abuses, are uniquely trapped by their situation and so are unable to take legal action. Because their parents are acquitted the children are likely to be returned to the parents' care and then no-one can approach them or take action on their behalf without the parents' consent. (It should also be noted that the local authority "parent" in the last case also blocked information going to the children about taking a case to Europe.)

We believe that the Government's failure to remove the archaic defence of "reasonable chastisement" is based, not on principle or evidence, but entirely on a fear of alienating the voting public. Health Minister Jacqui Smith said that changes in the law "would neither command widespread public support nor be capable of consistent enforcement".

We believe that both of these views are misjudgements. As regards consistent enforcement, enforcing the criminalization of all assaults on children would be no different to enforcing adult assault offences, where trivial assaults are not brought to court. The aim of a law against physical punishment is primarily educative - to broadcast the powerful message that parents do not have a legal right to hit their children. Effective child protection is prevention, not enforcement. The enforcement of cases where significant harm has been caused by physical punishment ("child abuse") would, however, be made easier and more consistent if there was no defence for lawyers to encourage perpetrators to use.

As regards public support, all ten countries - most recently Germany in 2000 - that have outlawed smacking did so against majority public opinion. The governments concerned have not suffered serious backlashes, and, where the law reform has been linked to public education, public opinion has significantly and rapidly started to change in favour of the law.

The Government is, in any event, being disingenuous about public opinion, given the results of its own polls, and those of the National Family and Parenting Institutes. These found that a large majority of the public in fact do not support any sort of physical punishment beyond the mildest smack to children over two. 76% believed that the law should outlaw the smacking of under-twos, over 85% believed that implements should be banned, less than four per cent found punishment reasonable that caused a red mark that lasts for a few days, and less than 1 per cent condoned a bruise that lasts a few days.

The truth is public opinion is not clear about smacking, because most parents do not feel good about smacking their children. They smack them because they think they ought to, because they do not know how else to discipline their children, or they lash out impulsively from stress and anger. Hostility towards an anti-smacking law appears mostly to be about the "insult" of having mild smacks criminalised and fear of such smacks being prosecuted. For example, a "Children are unbeatable!" MORI poll on outlawing physical punishment found that a large majority of the general public - 73 per cent (78 per cent of parents with dependent children) - supported a ban if they could be sure that "parents would not be prosecuted for trivial smacks".

So, although this Inquiry would be unique among inquiries into child deaths in recommending a ban on all forms of physical punishment (though the NSPCC national inquiry into child protection did make this recommendation), the Inquiry would not be recommending an unworkable reform. Equally to the point, the Inquiry would be recommending a reform that will undoubtedly occur at some point in the future. The sooner it is enacted the sooner children will be protected from the real danger, pain, humiliation and misery that comes from "reasonable chastisement".

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