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20 News AN AMENDMENT to the


Wales Bill, discussed in the House of Lords this week, could see parents banned from smacking children in Wales. Powers over parental discipline


would be devolved to the Welsh Government, which included a commitment to ‘seek cross-party support for legislation to end the defence of reasonable punishment’ in their 2016 Assembly manifesto. Children’s Secretary Carl


Sargeant appeared to confirm this in September when he said he hoped to ‘take forward, on a cross-party basis, legislation that will remove the defence of reasonable punishment’. A previous attempt to amend


the Violence Against Women Bill in 2015 to include ending the ‘reasonable chastisement’ defence fell through when the minority Labour Government subjected Labour AMs to the whip, with only


two Labour AMs defying this. One of them, Labour AM Julie


Morgan, said the bill was the ‘perfect place for an amendment that seeks to prohibit all physical violence against children’. However, it was not thought at the


time that the Welsh Government had the necessary powers to implement a ban on smacking, and Public Services Minister Leighton Andrews said that the WG felt that the Bill was not the right place for the issue to be addressed.


REASONABLE CHASTISEMENT


While common law allowed


parents and others who have lawful control or charge of a child to use ‘moderate and reasonable chastisement and correction’, this has altered over the years. In 1860, a ruling by 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.” In 1904, the Prevention of Cruelty


to Children Act expressly recognised the rights of parents, guardians and teachers. This also included the right of a master to inflict ‘moderate chastisement’ on an apprentice for neglect or other sins. Section 58 of the Children Act


2004 enables parents to justify common assault of their children as reasonable punishment, but prevents the defence being used in relation to more serious assault charges. This applies in England and Wales. Corporal punishment was banned


in state schools in England and Wales in 1986, and in private schools which received no state funding in 1999.


CHILDREN’S


COMMISSIONER FAVOURS BAN


In 2015, Sally Holland argued


against the theory that ending the reasonable chastisement defence would lead to courts being filled with loving parents who slapped a child in a moment of anger. “Some people say small children


won’t listen to reason so hitting is the only way, but look at the outrage, and rightly so, when we hear about elderly people with dementia being hit because they spilled a drink,” she said in an interview at the time. “Why would we make it legal


Children’s commisioner for Wales, Sally Holland: “It is basic inequality”


Simon Thomas AM: “We want to see action taken as soon as possible”


to hit someone smaller and more vulnerable than ourselves and illegal to hit someone as big? It is a basic inequality. “I don’t think we can say we


promote children’s rights unless we give them this fundamental equality


OTHER PARTIES A number of Plaid Cymru AMs


voted in favour of the Violence Against Women Bill amendment in 2015, and the topic was one of those on the table when the party met with Labour to agree Carwyn Jones’ instatement as First Minister last year. At the time of the last vote, Simon


Thomas AM, Shadow Education Minister during the fourth Assembly, said: “Plaid Cymru has always championed the rights of children, and we want to see action taken as soon as possible to protect children from physical harm.” However, Welsh Conservative


leader Andrew RT Davies remains a staunch champion of parents’ rights to raise their children without ‘nanny state’ interference: “I’m a big believer in families having a right to bring up children and conduct their own affairs in the manner they see fit,” he said. “There is a fine line between


the state interfering in family life and obviously parents having the opportunity to exercise their own judgement in their own situation.”


THE BIGGER PICTURE The EU has regularly criticised


the approach to ‘reasonable chastisement’ in England and Wales, something which dates back to a landmark European Court of Human Rights ruling in 1998, after a 10-year- old boy was beaten with a cane by his stepfather. Although the boy was hit


repeatedly with a three-foot garden cane, with some of the blows landing on bare skin, the stepfather successfully used the ‘reasonable chastisement’ defence in UK courts in 1994 and was cleared.


- the right not to be hit.” Professor Holland also pointed


out that, of countries which brought in anti-smacking legislation, and those which attempted to reduce smacking via a public information campaign, those which did both saw the amount of smacking reduced.


However, judges in Strasbourg


disagreed, quoting the European Convention of Human Rights which says: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The boy was awarded £10,000


compensation, and £20,000 legal costs. One striking feature when


studying contemporary news reports about this story – which happened less than 20 years ago – is the way in which attitudes have already changed about this subject. It is hard to imagine many front-line politicians in this day and age defending the right of parents and guardians to hit 10-year-olds with garden canes behind closed doors, but this appeared to be exactly what the then leader of the Conservatives William Hague did. Speaking to the BBC about


the ruling, Mr Hague said: “We’ve taken the nanny state too far when we have to have court rulings about what people can do with their own children in their own home.” Even the Labour Health Secretary


at the time, Paul Boateng, while welcoming the verdict as ‘common sense’, said: “This has nothing to do with the issue of smacking. The overwhelming majority of parents know the difference between smacking and beating. “They know how to ensure good


social behaviour in a loving and caring way. We respect that right.” In 2010, Maud de Boer-


Buquicchio, Deputy Secretary General of the Council of Europe said: “The UK is one of the countries that has not yet implemented a full ban. In part, this is because the traditional parent-child relationship in the UK is one of authority and state intervention into family affairs is still not welcome. “We are talking about


fundamental human rights. Not only do children have the same human rights as adults, but they are more vulnerable than adults. They need more protection and not less.” Between 2007 and 2010, 20


countries across Europe introduced anti-smacking legislation.


THE HERALD FRIDAY JANUARY 13 2017


Follow us on Twitter @pembsherald


Smacking children could be banned


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