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Children, Schools and Families Bill

My Lords, I beg to move Amendment 40 in my name and that of the noble Lord, Lord Judd, and the noble Baroness, Lady Stern, who apologises for not being able to be present. This proposed new clause would restrict the availability of the defence of reasonable punishment, which can be used to justify common assault on a child, to those who have legal parental responsibility for the child. The amendment uses the term, ""a person with parental responsibility"," rather than "parents" because it is important to include step-parents, grandparents and other legal guardians who have gained full parenting responsibilities, and equally important to exclude fathers who have not sought or been granted parental responsibility—for example, because the child was the result of a rape. I first make it clear that my party would like to see the defence of reasonable punishment removed completely. Full prohibition of all forms of physical punishment is the only safe and just solution. That has been affirmed by relevant international human rights bodies. The Committee on the Rights of the Child has now recommended three times that the UK reforms its legislation to ban physical punishment, and two other UN treaty bodies have also made this recommendation. But the Government have resisted these calls. Noble Lords will recall that they have even refused their party members a free vote on this issue. This proposed new clause has been framed to fit in with the Government’s current policy on physical punishment. According to official government statements, that policy is to avoid criminalising parents while actively discouraging them from using physical punishment and promoting positive forms of discipline. In 2004, the Conservative Party took a similar line. That is also true of the media, but it is my strong suspicion that the general public are already under the misapprehension that only parents can smack children. I have been puzzled by the Government’s reluctance to accept this amendment when it was proposed by my honourable friends in another place, as it makes it clear that only those people with parental responsibility have a right to the defence. The Secretary of State, Ed Balls, chose rather to pass the matter over to Sir Roger Singleton, the independent chief adviser on the safety of children. I note that the Secretary of State said in a debate in the other place that he did not rule out the possibility of accepting the amendment but wanted to wait for Sir Roger’s advice before reaching a view. We now have Sir Roger’s report, in which he makes three recommendations, all of which the Government have said they accept. This has been confirmed in the letter from the noble Baroness, Lady Morgan, which says that the Government are committed to ensuring that they are taken forward as swiftly as possible. The earliest opportunity is today, but the Government have not tabled an amendment so I have done it myself. Sir Roger’s principal recommendation is that the current ban on physical punishment should be extended to cover everyone except parents and members of the child’s own family or household. Sir Roger declines to define what is meant by family or household, on the ground that such an attempt would be cumbersome, bureaucratic, largely impractical and very difficult to communicate. This, frankly, is a cop-out. I can well understand why Sir Roger is not attempting to define family and household, but, unfortunately, not everyone is going to be able to shrug out of answering this crucial question. For example, are private foster parents included as a child’s household? In recent weeks, we have seen the conviction for murder of the carers of Ryan Lovell-Hancox, who had been looking after him for just under 28 days—technically the point at which one becomes a private foster parent. We know that physical punishment played a central role in Ryan’s death, as his injuries included a bruise in the shape of a hand on his back. Perhaps in time a court case may decide that care of under 28 days does not amount to a household—but what, then, of Victoria Climbié? Her only care in this country was by private foster carers, one of whom, a great-aunt, was also a family member. Could any court reasonably suggest that those murderous people did not constitute these children’s household? I doubt it—so I must tentatively assume that private foster carers are included in those who will have a right to use physical punishment under Sir Roger’s proposals. What about step-parents, or the unmarried partners of parents? They are usually the people who kill children. Here, Sir Roger is clearer; they are to be included in the group that he proposes should be allowed the defence for common assaults on children. I am aware that Conservative spokespeople and others are deeply concerned about an apparent cover-up of the disproportionate degree to which sexual partners—specifically, those that they term guest fathers—are responsible for child abuse. Baby P and Khyra Ishaq are currently the most notorious cases of that. Sir Roger mentions the fact that his attention has been drawn to these many cases where children have been seriously injured or killed by the partners of their parents, but what does he say about it? He says that these were all cases of unlawful violence and that it is speculative whether the reasonable punishment defence, had it been available at the time, would have had any impact on the assailants’ behaviour. Of course, it is speculative that these cases of serious abuse might not have occurred if, for example, a social worker could have informed the mother’s boyfriend that he would be breaking the law if he laid a finger on the child. However, it is reasonable to suppose that some children might have been saved—and if even one child had been, does that not justify removing the defence for something that both Sir Roger and the Government say that they do not approve of in the first place? He questions whether the defence should be given to those acting in loco parentis, in circumstances where the adult with formal parental responsibility is content for a mild smack to be administered. Finally, I return to Sir Roger’s proposals that it should be for the courts to decide when a person is a legitimate member of the child’s family or household. It is here that we see one of the greatest weaknesses in having such an unclear law. Sir Roger’s report notes that the CPS is only aware of 14 cases where the defence might have been raised since Section 58 came into force in 2005, but no cases at all where the use of the defence has resulted in a conviction. In other words, no courts have been asked to test the concept of reasonable punishment, and you can be reasonably sure that no courts will test the definition of family or household either. One reason is that the victims are children. How are children, who are utterly dependent on those inflicting the physical punishment, likely ever to be in a position to challenge that person through a court action? Calls to Childline make it clear that thousands of children are suffering daily from distressing forms of physical punishment. Far more children than ever come to the attention of social services. Sir Roger’s proposals on family and household are guaranteed to cause even greater confusion over the law than at present. I have not mentioned nannies; are they included in households? Accepting this proposed new clause in my Amendment 40 would provide a swift and clear solution to a safeguarding issue of considerable importance to children, and something to which the Government themselves have said that they were committed. I beg to move.