Supporting Parents - PDF document

Supporting Parents Part 1:Part 2:Part 3:Part 4:The need for change11Part 5:Proposal and further options for change13Part 6:Summary of questions for consultation18Annex A:The 1998 Office for National Statistics Survey 20Annex B:Parental Responsibility22 CONTENTS One of the most difficult skills for parents to exercise is to applybehaviour and grow up into responsible and social adults. On the oneconsistently to a childÕs behaviour, and setting clear boundaries Ð ispart of bringing up children well. A failure to provide guidance andto a child. On the other hand, discipline that is harsh can be damagingto a child both physically and emotionally. Parents use many methods to guide and discipline their children,is felt to be bad or dangerous behaviour. Currently, where a parent Ð or somebody acting on their behalfraise a defence of Ôreasonable chastisementÕ. If a Court agrees thatThe concept of Ôreasonable chastisementÕ has its origins in Victoriantimes. A case taken to the European Court of Human Rights hasexposed that the law needs modernising to make sure that childrenare protected from harsh physical punishment. The European Courtruled that, because of the way in which the defence of ÔreasonablechastisementÕ was applied, UK law had failed to protect a boy fromcontravention of the European Convention on Human Rights. As a Part One: 1: NTRODUCTIONAND education, childrenÕs homes and The Government fully accepts the need for change. The harmful anddegrading treatment of children can never be justified. We have madeit quite clear, however, that we do forward is to make unlawful all smacking and other forms of physicalrebuke and this paper explicitly rules out this possibility. There is aacceptable, and the beating of children. The law needs to be clarifiedthat it better protects children from harm. The aim of the consultationis to address two specific issues. First, within the context of a modernfamily policy in a responsible society, where should we draw the lineas to what physical punishment of children is acceptable within thefamily setting? Second, how do we achieve that position in law?summarises current prevailing attitudes towards this issue. It outlinesthe existing law; explains in more detail why change is needed; setsTodayÕs children will shape tomorrowÕs future society. As parents,family members, friends, neighbours and citizens, we all have an interesthealthy and socially responsible adults. We need to achieve a balancefrom Government, the responsibility of parents to bring their childrenup safely, and the right of children to be protected from harm. WeThis consultation paper covers England. The Secretary of State forWales will, with the assistance of the Welsh Assembly, carry out asimilar consultation in Wales. Northern Ireland will produce its ownconsultation document, adapted to suit the Northern Ireland context.the Scottish Parliament. The Scottish Executive will therefore carryout its own consultation for Scotland. Part One: 2 The success of families in bringing up children will shape the futurenot only of those individual children, but of our whole future society.However, being a parent, whatever the circumstances, can be hardwork as well as tremendously rewarding. And today, many familieskey influence on our society, and strengthening the family has been atthe heart of much of our policy development. Our consultationSupporting Familiesstrengthening the family, principally through support for families withchildren. The programme concentrates on five areas:¥ Providing better Services and Support for Parents; ¥ Providing better Financial Support for Families;¥ Helping Families Balance Work and Home¥ Strengthening Marriage;¥ Providing better Support for Serious Family Problemsand support to help them with the difficult job of parenting. We are¥A new National Family and Parenting Institute to provide advice Part Two:Supporting Parents and Families 3 2: ARENTSANDFAMILIESOVERNMENT ¥ A new national parent helpline based on the existing ParentLineparents, enabling them to talk through the problems they face orOur approach throughout has been to avoid heavy-handed intrusionof families, to make available help and encouragement to parents inhelp is all part of responsible parenting. This consultation paperSupport to Parents: Guiding and Disciplining Childrencommunicating with their children. Many parents experience difficultiesat some stage in gaining their childrenÕs co-operation, setting boundaries,or maintaining effective authority. Parenting Institute will offer new sources of advice and support tosafely and responsibly. We are also encouraging the wider availabilityother national and local advice and support groups. These groupshelping them to find methods of getting children to co-operate andbehave in an acceptable and appropriate manner, using means otherthe child in, sending the child to his or her room, or stopping the childdoing something he or she likes (such as watching the television). Thisconflict situations, for both parents and children. Children need to beThere may still be occasions, however, when parents may consider it Part Two:Supporting Parents and Families 4 that the law commands public acceptance. Social surveys monitoringpublic attitudes are one barometer of public mood. To help preparedefend the right of parents to use physical punishment: 88% ofsmack a naughty child, while only 8% disagreed. The survey indicatedvery little support, however, for the law allowing punishment that washarsh or potentially harmful to a child. Fewer than 1% of respondentsthought punishment ÔreasonableÕ if it left marks and bruises whichshould allow parents to smack a child on the head. There was alsosticks, belts or slippers to punish a naughty child, with only 4% supportingA summary of the survey findings is presented at Annex A.punishment by parents and all other carers. A number of UK organisationsrepresenting childrenÕs rights and interests have argued that the mostharm is to follow the example set in these countries. As a first step,they are proposing that the defence of reasonable chastisement shouldof a minor nature are not taken forward by the Crown ProsecutionService (CPS). So with children, they believe, the removal of theby a parent leading to prosecution. They argue that the possibilityof prosecution and the existence of a law prohibiting the physicalinfluence social attitudes, and encourage the use of alternatives to Part Two:Supporting Parents and Families 5 Sweden, Finland, Denmark,Norway, Austria, Cyprus, Croatia, outlaw all physical punishment of a child by a parent. Nor, we believe,would the majority of parents support such a measure. It would beintrusive and incompatible with our aim of helping and encouragingparents in their role. There could clearly be no guarantee that therewould not be charges of assault brought in relation to minor cases.in the legal system. We do not, therefore, consider the options ofall physical punishment of children in Part 5 of this paper, which sets Part Two:Supporting Parents and Families 6 Currently, an adult who is deemed to have assaulted a child may belaw in England and Wales. The Crown Prosecution Service (CPS) willon the particular facts of the case in question. The police and the CPSoffences against the person, which offers guidance to police officersand Crown Prosecutors on the most appropriate charge to bring insuch cases.Non-Fatal Violent Offences Against the PersonThe Offences Against the Person Act 1861 harm with intent".creates the offence of "unlawful wounding/inflicting grievouscreates the offence of "assault occasioning actual bodilyharm". The offence is committed when a person assaults another,thereby causing actual bodily harm to that other person. The prosecutionThe maximum penalty is six months imprisonment and/or a fine notThe Offences Against the Person Charging Standard sets out the types Part Three:The Existing Law 7 3: Offences Against the Person These include: loss or breaking of a tooth; temporary loss of sensoryfear, distress or panic. of the Act, a person may be charged with commonassault. An offence of common assault is committed when a personeither assaults or inflicts battery upon another person. An assault isto apprehend the immediate infliction of unlawful force." A battery iscommitted when a person "intentionally or recklessly inflicts unlawfulforce upon another." Cases of common assault may only be tried inthe Magistrates Court. The offence incurs a maximum penalty of 6maximum available to magistrates.What distinguishes this offence from one brought under Section 47 ofthe Offences Against the Person Act, is the degree of injury whichresults. The Offences Against the Person Charging Standard statesto Section 47 "may be justified in exceptional circumstances or whereProposals for Changebeing archaic and unclear. The Government has already consultedon ways of clarifying and rationalising the law through a new set of¥intentionally or recklessly causing injury;¥ recklessly causing serious injury;¥ intentionally causing serious injury. Part Three:The Existing Law 8 Proposals were set out in theÔViolence: Reforming the OffencesAgainst the Person Act 1861Õ.Consultation has now closed and The Children and Young Persons Act 1933hearing, or limb, or organ of the body, and any mental derangement."In practice, a charge under Section1(1) would rarely be brought againstIn civil law, an action may be brought for assault as a form of trespassAn injunction preventing further assaults can also be sought.The Defence of Reasonable Chastisementdefence of Ôreasonable chastisementÕ of the child. In criminal proceedingsThe defence of Ôreasonable chastisementÕ dates back to a judgment inThe Children and Young Persons Act 1933 subsequently gave statutoryteacher, or other person having the lawful control or charge of a child Part Three:The Existing Law 9 3 The defence of Ôreasonable chastisementÕ is available generally to adultsworking in schools and nurseries, staff in childrenÕs homes, or fostercarers (other than in private fostering arrangements). Corporal3.16 What constitutes Ôreasonable chastisementÕ is not defined inthe law. Whether a defence succeeds in a UK Court depends uponthe facts of that case. The concept of ÔreasonablenessÕ enables theCourts to apply standards prevailing in contemporary society. Part Three: 10 The need for a change in the law arises from a case heard by theEuropean Court of Human Rights. The Court ruled that UK lawhad failed to protect a boy, who had suffered repeated and severeRights. The case is referred to as . v the United Kingdom with a garden cane by their stepfather-to-be. The man was subsequentlycharged with assault occasioning actual bodily harm contrary to Section47 of the Offences Against the Person Act 1861 (see paragraph 3.4).He was tried in February 1994 and used the defence of reasonablechastisement. He was found not guilty by a jury.of the boyÕs rights under Article 3. There was subsequently a fullhearing before the Court. In a judgment delivered in September 1998,level of severity prohibited by Article 3 of the Convention, which states"No one shall be subjected to torture or to inhuman or degradingfor the actions of the stepfather-to-be, because of the way in whichthe UK defence of Ôreasonable chastisementÕ had been applied, UKlaw had failed to protect A. from the severe beatings which he hadreceived. The Court ruled that States are required to take measuresto protect children against such treatment. The Court concluded that,The CourtÕs decision was based on the facts of the case before it. Theruling applied to that case only. No general statement was made about Part Four: 11 4: EEDFOR the physical punishment of children, although the boyÕs legal representativeKingdom has undertaken to abide by the judgement of the court in acase to which it is a party. This ruling requires us to change the law,treatmentÕ. The Government accepts the need for change, and hasmade a public commitment to consult on the best way forward. Quitebe right that it should be protected under the law. Part Four: 12 1. PROPOSALIn order to meet the criticism made by the European Court that thenever be justified as Ôreasonable chastisementÕ.Human Rights and its case law into account when determining cases.) treatment, ill-treatment must reach a minimum level of severity, andcircumstances of the case. The circumstances it decided were relevant¥ 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.5.4 We are therefore proposing that it should explicitly be set outof a child constitutes Ôreasonable chastisementÕ, a Court should Part Five: Proposal and Further Options for Change 13 5: ROPOSALANDPTIONSFOR 2. OPTIONS FOR CHANGEto be the minimum steps needed to clarify the law in light of theEuropean CourtÕs ruling. However, the 1998 ONS public opiniongreater protection. We have therefore set out below a further threechastisement might be further limited. These would in be implementation of the proposal above. We would welcome yourreflects a modern societyÕs view of what constitutes the ÔreasonableÕFurther expand upon the factors to be taken intoaccount when considering a defence of ÔreasonableÔreasonable chastisementÕ. For example, additional factors might includegiven, the persons involved, the vulnerability of the child. We wouldbe deemed ÔreasonableÕ. This might excludeas ÔreasonableÕ any physical punishment which causes, or is likely tocause injury to the head (including damage to the brain, eyes and ears).Drawing on the views expressed in the ONS survey of public opinion,belts, slippers). We would welcome your views on whether there areany forms of physical punishment which should never be deemedÔreasonableÕ under the law.1. What, if any, factors whether the physical punishment of a child constitutes Ôreasonable Part Five: Proposal and Further Options for Change 14 capable of being defended as ÔreasonableÕ? Specifically, should the law¥ Physical punishment which causes, or is likely to cause, injury to the head¥ Physical punishment using implements (e.g. canes, slippers, belts)?Retain the defence of reasonable chastisement forserious assault charges. In respect of the existing law on violent offencesagainst the person, the defence would be available with common assault under Section 39 of the Criminal Justice ActAgainst the Person Act 1861 (see paragraphs 3.2 to 3.5). In respectof the GovernmentÕs proposals for a reformed law on violent offencesagainst the person, the defence would be available to those charged with intentionally or recklesslycausing injury, recklessly causing serious injury, or intentionally causingserious injury.serious assaults). It would have the effect of greatly reducing the extentThe main point at issue is whether a defence of Ôreasonable chastisementÕwhich attract a charge of causing actual bodily harm. In reaching a view,you may wish to consider the Charging Standard guidelines at para.3.5. Should parents and others charged with causing the sort of injuriesÔreasonable chastisementÕ? On the other hand, would removing theability to physically punish their children within the law?1. Should we restrict the defence of reasonable chastisement so Part Five:Proposal and Further Options for Change 15 Option 3: defence of reasonable chastisement in future. It asks whether theor to all those acting in a parental role, as the defence applies at presentpunishment in the home only. The issue of behaviour management inas part of the reform of Part X of the Children Act 1989.)Currently, the defence of reasonable chastisement may be claimedof children has been specifically outlawed (see para. 3.15). There ispunishment. If a relative or neighbour were looking after a child, forchastisement even if a parent had not explicitly authorised them tounder the Children Act 1989 (see Annex B). What this option raises is:¥ Whether the defence should be available responsibility or whether it should be available, as now, to those¥If the defence is available to those delegation from parents (see para. 5.12 above) as now,These matters are not, however, as straightforward as they mayfirst appear. For example, restricting the right to use reasonablemight have a significant role in a childÕs life. This would, for example,exclude unmarried fathers without parental responsibility. It wouldgrand parents. In family proceedings the courts are required to operate Part Five: Proposal and Further Options for Change 16 where for example there will be a distinction between the rights ofchildren born outside marriage where he has no parental responsibility,and unrelated children of the mother, where the position will varydepending on the status of the father. Mothers would be in a similarposition in relation to children in the family who are not their ownparents, where parent is defined as those with parental responsibility.What happens if those with such responsibility disagree? Should allthose with parental responsibility be required to agree the expressdelegation of the right to use reasonable chastisement? These areall important issues which must be taken into account.1. Who should be able to claim the defence of Ôreasonable chastisementÕ?¥ As now, all those acting on behalf of parents in looking after children(except in settings where physical punishment has been outlawed)?¥ Parents only (defined as those with parental responsibility under¥ All those acting on behalf of parents, but only if parents havegiven their express permission that those acting on their behalf may Part Five: Proposal and Further Options for Change 17 1 What, if any, factorswhether the physical punishment of a child constitutes Ôreasonable2 Are there any forms of physical punishment which should never becapable of being defended as ÔreasonableÕ? Specifically, should the¥ Physical punishment which causes, or is likely cause injuries to¥ Physical punishment using implements (e.g. canes, slippers, belts)?3 Should we restrict the defence of reasonable chastisement so thatit may be used only by those charged with common assault, and not4 Who should be able to claim the defence of Ôreasonable chastisementÕ?¥ As now, all those acting on behalf of parents in looking afterchildren (except in settings where physical punishment has been¥ Parents only (defined as those with parental responsibility under¥All those acting on behalf of parents, but only if parents havegiven their express permission that those acting on their behalf Part Six: 18 UMMARYOFUESTIONSFORONSULTATION HOW TO SEND US YOUR VIEWSPlease return two written copies of your response, by 21 April 2000, to:Response to the Physical Punishment of Children ConsultationDepartment of HealthRoom 122 Wellington House133-155 Waterloo Roadplease note that we would like to hear from you in writing and ¥ Each question is answered on a separate page;¥ Your reply to each question is clearly numbered to correspond with the¥ Your response is clearly marked with your name, address, and (if relevant)We may wish to cite, or quote from, some of the responses we receive. Pleaseon a named basis, in any subsequent document that may be produced. Wewill assume that you are happy to be quoted unless you tell us to the contrary. How to send us your views 19 1 The Department of Health included questions on the Office for NationalStatistics (ONS) Omnibus Survey to gather information on peopleÕsviews on the physical punishment of children. The ONS Omnibusthroughout the year. The questions were included in April 1998 and a2 The key survey findings are summarised below.¥ 88% of respondents agreed that it is sometimes necessary to smack a¥ 85% agreed that parents should be allowed, by law, to smack a naughty¥ There were no significant differences in the views on smacking held by¥ 4% of respondents said that parents should be allowed, by law, to use afive years old while 7% said that parents should be allowed, by law, to¥ Over 90% of respondents said that parents should be allowed, by law,¥ A minority said that parents should be allowed, by law, to punish¥ 60% considered physical punishment that leaves no mark at all to bereasonable from the options presented. 36% would not specify anylevel of punishment as reasonable.¥ Nearly all respondents considered punishment that leaves a red mark orbruising to be unreasonable (96% and over 99% respectively). Annex A:The Physical Punishment of Children: A Consultation 20 UNISHMENTOFONSULTATION Parents should be allowed, by law, to smack a naughty child who is over five years oldParents should be allowed, by law, to smack a naughty childwho is over two years oldParents should be allowed, by law, to smack a naughty childParents should be allowed, by law, to use things like canes, Parents should be allowed, by law, to use things like canes, Parents should be allowed, by law to use things like canes, On this card is a list of other methods that some parents have used topunish a naughty child. Which of them do you think parents should beallowed to use, by law?ÔGroundingÕ or keeping the child in91Not allowing the child a meal or part of a meal16the child from doing something he or she likes to do)35level of punishment? Physical punishment that:Leaves marks and bruises that last for more than a few days but which does not result in permanent Annex A:The Physical Punishment of Children: A Consultation 21 AgreeDisagree53341376789493197987 1 In Option 3, we ask whether the defence of Ôreasonable chastisementÕ2 Section 3 of the Children Act 1989 sets out the meaning of parental3 Section 2 says that the following automatically have parental responsibility:¥ The childÕs mother and father if they are married at the time of the childÕs¥ The childÕs mother if the parents are not married.4 Section 4 says that where the parents are not married at the birth the father¥By making an agreement with the childÕs mother;¥ By applying to the Court for a parental responsibility order;¥By subsequently marrying the childÕs mother.5 Parental responsibility may also be aquired by a person who obtains afor three years is entitled to apply for a residence order. Anyone elsehas been granted in their favour. 6A person who adopts a child automatically takes on parental responsibilitythe event of the parentÕs death. A guardian will have parental responsibility Annex B:Parental Responsibility 22 ARENTAL acquire parental responsibility without further formality. This provision will Annex B:Parental Responsibility 23