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Children, Schools and Families Bill

I am grateful to the Secretary of State for his comments, and I shall listen to what he has to say in due course. The argument of the hon. Member for Mid-Dorset and North Poole struck me as being somewhat confusing, but no doubt we will find out from the Secretary of State what he intends to lay down, although the amendment is not his. This is where the confusion arises: unfortunately, the Government have not made a proposal, and things seem to be being done vicariously through the Liberal Democrats' amendment. [Interruption.] I can see the Secretary of State's frustration, so I shall give him another opportunity to speak. [Interruption.] He says that he does not need it—fine. The legal effect of section 58 of the 2004 Act—it might be helpful for the Secretary of State to listen to this—is to remove the defence of reasonable punishment in any charge of assault occasioning actual bodily harm, or of wounding and causing grievous bodily harm, under the Offences against the Person Act 1861, or in any charge of cruelty to a child under the Children and Young Persons Act 1933. I think that we all want to avoid any disproportionate treatment, chastisement or punishment of a child that falls within the category of a charge of cruelty, wounding or grievous bodily harm. The problem arises in the context of case law and the interaction between that case law, the Human Rights Act 1998 and the European convention on human rights, which I shall discuss in a moment. The defence of reasonable punishment dates back to 1860, when the characteristics were spelt out by the judiciary because there were no relevant statutes at that time. In one case, Chief Justice Cockburn said:""By the law of England, a parent...may for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable."" The legal position was that it was then left to the courts, or to juries, to decide what was moderate and reasonable in the view of an ordinary person in any particular case. Of course, people's views on such matters alter and evolve over time. I suspect that the Secretary of State well knows that between 1860 and 2004, a parent who was charged with a crime relating to an assault on their child was able to raise the defence of reasonable punishment. However, since the enactment of section 58 of the 2004 Act, that defence cannot be used unless the defendant is charged only with common assault, the victim is a child, and the defendant is the parent of that child or is a person acting in loco parentis.