Why section 58 undermines effective child protection

Following the tragic death of Victoria Climbié and again after Peter Connolly’s death, both of whom died from physical punishment that had escalated from smacks to torture, the Government asked Lord Laming to make recommendations for changes which would help prevent such deaths in future.  Despite numerous submissions by statutory and voluntary bodies arguing that a ban unambiguously outlawing all forms of violent punishment was an obvious protection, Lord Laming declined to address the subject in either of his reports.[1]  However his first report led to the 2004 Children Act, including section 58 introducing the defence of “reasonable punishment” for common assaults on children, which was designed to block the campaign for full abolition while meeting the requirements for law reform following the A v UK case.

Official government reports also avoid the topic of physical punishment.  Most strikingly, Working Together to Safeguard Children, the 300-plus page official government guidance on child protection, completely fails to address the issue, although it has been revised three times in recent years, first to take in the reforms in the 2004 Children Act, then in 2009 following the death of Peter Connolly and finally in 2013 after the Munro review of the child protection system. In fact there has been complete silence in Government guidance, with dozens of circulars on child protection, domestic violence, early years, family support, crime prevention, every child matters, every parent matters etc. being issued over the years without a single reference to the subject – similarly with official inquiries. [2]   Failure to raise the subject also pervades government-funded initiatives: for example one of the first publications of the then government-funded National Family and Parenting Institute in 2003 was a booklet on positive parenting of young children which managed to avoid mentioning smacking and physical punishment altogether.[3] Recently two independent inquiries, Professor Eileen Munro’s review of child protection and MP Graham Allen’s review of early years intervention also refrained from mentioning the subject.[4]

The simplest explanation for the official silence on this central issue is that section 58, in permitting an arbitrary level of violence to children, is almost impossible to justify in the context of child protection. The existence of section 58 undermines effective child protection because:

• research shows that escalation from mild smacking to serious assaults is an inherent (albeit not inevitable) feature of physical punishment;
• physical punishment invades children's physical integrity, making it a potential pathway to sexual abuse;professionals working with families are unable to deliver clear messages that hitting and hurting children is not allowed;
• children do not complain about something they are told is permitted and justified;
• those witnessing violence to children have no confidence in either intervening themselves or reporting it to the authorities;
• parents are receiving confusing messages about the legitimacy of hurting their children;
• section 58 fails to protect children from painful, dangerous, humiliating or frequent assaults;
• even the mildest smack sends children the message that hitting people is acceptable behaviour.

Many of those involved in safeguarding responding to the then Government's review of section 58 in 2007 argued that this law weakened child protection.  The vast majority thought that the new law was unhelpful to children at risk, and that only 1% of the respondents overall believed that children's legal protection had been improved by the new law.[5]

By April 2011, 29 Local Safeguarding of Children Boards (LSCBs) had signed up to the aims of Children Are Unbeatable!  Examples of why LSCBs see the issue as vitally important include:

Leicester, Leicestershire and Rutland LSCB

"Our experience is that some parents who abuse use the need to discipline as justification and do not recognise the impact of their behaviour.  There is nothing to indicate that there has been a shift in culture away from hitting children, which might impact on parents moving along the continuum into "unacceptable" levels of physical punishment...Section 58 can be seen as acting as a licence to hit rather than promoting more constructive and positive alternatives."[6]

Lancashire LSCB

"Section 58 has undermined both positive discussion and the promotion of more positive methods of discipline.  It cannot stimulate agencies whilst it reinforces the rights of parents to physically chastise children... and sends a message to children that violence is an acceptable way of dealing with conflict."

City of York LSCB

"Crucially, section 58 leaves many vulnerable children without any legal protection...Describing the physical assault of children as 'smacking' or 'reasonable chastisement' enables those who use it, or who condone it, to deny that it is in fact physical assault.  There are parallels with domestic abuse, where the perpetrator will often claim that they were not assaulting the victim, but merely tapping, smacking or pushing."

Sunderland LSCB

"Physical punishment tends to escalate: almost all physical abuse of children is administered in a context of punishment or control – is physical punishment... The reaffirmination of parents' right to hit ties the hands of agencies and undermines any positive discussions or promotion of positive discipline: hitting children is a lesson in bad behaviour."

In 2008 the following joint statement was made by the Association of Directors of Children's Services; British Association for the Study and Prevention of Child Abuse and Neglect; British Association of Social Workers; Unite – Community Practitioners' and Health Visitors' Association; National Society for the Prevention of Cruelty to Children; Parenting UK; Royal College of Nursing Safeguarding Children & Young People Forum; Royal College of Paediatrics and Child Health:

"We believe that complete removal of the 'reasonable punishment' defence will:

• fulfil children's human rightsreduce violence against children
• improve the effectiveness of child protection
• provide a foundation for promotion of positive discipline that works

If it is accompanied by appropriate guidance prepared following full consultation with ourselves and other parties, we are confident that:

• its implementation in children's best interests can be assured
• there will be no change to the 'significant harm' threshold for formal investigation
• parents will not be prosecuted for 'minor assaults', as this would not be in children's best interests."

Children killed from physical punishment

While it is wrong to say that those who batter and assault children and those who occasionally smack their children are "the same", it is equally wrong to say they have nothing to do with each other.  There have been dozens of inquiries into child deaths by assaults, almost all of which have included an element of physical punishment. The issue of physical punishment is never mentioned in the regular overviews of serious case reviews commissioned by the Government.

As well as Victoria Climbié and Peter Connolly ("Baby Peter"), examples include:

• Heidi Koseda (died 1984) Four year-old beaten and starved to death by mother's boyfriend, who punished her for "being greedy"
• Kimberley Carlile (1986) Four year-old imprisoned and beaten by her stepfather for "being naughty" and refusing to accept him as her new father
• Liam Johnson (1987 Three year old beaten to death by his father, Robert Johnson.  Johnson's girlfriend later said, "He was so powerful that when he smacked his sons he sometimes knocked them off their feet."
• Sukina (1988) Five year old beaten to death by her father because she was unable to spell her name.  She initially hit with a ruler, then plastic tubing and finally with a kettle flex.  As she was dying she told her father she was sorry.
• Leanne White (1992) Three year-old beaten to death by her mother and her boyfriend.  A neighbour reported Leanne's screams and the boyfriend saying, "If you do that again, I'll thrash you."  The social worker was assured Leanne had only been smacked on the hand because she cried too much.
• Lauren Wright  (2000)  Six year-old beaten to death by her stepmother.  People in her village had seen her being hit, but felt powerless to intervene.
• Carla Nicole Bone (2002) 13 month-old murdered by her mother's boyfriend, who was "disciplining" her for refusing to walk.  He told the police it started with "not-excessive smacks... It was the way I was brought up.  It never did me any harm."
• Kieran Edwards (2007) 21-month year-old who died after being shaken and struck by his step-father because he was "messing about and struggling"
• Yaseen Ege (2010) Seven year-old beaten to death by his mother because he failed to learn passages of the Koran by heart.

In a large meta-analysis of research on physical punishment, all studies relating to child protection found that physical punishment was significantly associated with unlawful abuse.[7]  Large-scale studies in the USA and Canada found that the majority of cases substantiated by the authorities as physical abuse were also cases of physical punishment.[8]  And it is clear, for example from ChildLine figures, that those identified by child protection professionals are just the tip of an iceberg of children who suffer severe and degrading assaults in the name of discipline every day.[9]