The Daily Telegraph, London, 10 September 1996

Tory anger as Europe backs caned boy

By Hugh Muir, Terence Shaw and Rachel Sylvester

THE Government promised yesterday to defend parents' right to smack their children after the European Commission of Human Rights allowed a boy of 12 who was beaten with a garden cane to challenge domestic law.

John Major said he had no plans to change the law. Stephen Dorrell, the Health Secretary, said the case, which threatens all physical punishment, would be strongly opposed. Replying to suggestions that the law might eventually be changed, the Prime Minister said: "I don't have that in mind. My children were dealt with at home by Norma and I [sic] in a way that was appropriate and personal to them. That is the way most parents should look after their children and do."

Mr Dorrell said that Britain's laws were clear and based on common sense. "Parents are allowed to use corporal punishment, but only to the extent of reasonable chastisement," he said.

Repeated beatings of the boy with a garden cane in 1993 led to his stepfather being arrested and charged with assault occasioning actual bodily harm. He was acquitted by a crown court jury in 1994.

The judge told the jury that it was a "perfectly good defence" that the alleged assault was "merely the correction of a child by his parent", providing that the correction was "moderate" in manner, quantity and administration.

The boy's mother described him as "totally out of control". The jury heard that he was beaten for trying to stab one of his brothers with a kitchen knife. However, the court also heard that the beating left him needing hospital treatment for injuries to his buttocks, thighs and calves. A consultant paediatrician discovered injuries apparently inflicted at different times over at least a week.

In their application to the commission, the boy and his natural father claimed that the canings were a breach of his rights under Article 3 of the European Human Rights Convention, which prohibits inhuman or degrading treatment or punishment.

They held the Government responsible for ensuring protection of the boy's rights against inhuman or degrading treatment and punishment. They also claimed that children were inadequately protected from physical violence because of the "reasonable chastisement" defence.

The commission ruled the boy's case admissible. Officials will now investigate the case and, if there is no friendly settlement, will draw up a report on whether the convention on human rights has been breached. The case may then be referred to the European Court of Human Rights. Rulings of the Strasbourg court are not directly enforceable in Britain, but the Government would be expected to bring the law into line to comply with its obligations under the convention.

The Government had argued that the boy's claim was "manifestly ill-founded" and that the Government bore no responsibility for the conduct of the stepfather. While it accepted responsibility for domestic law, it said that there was civil and criminal liability for unreasonable corporal punishment. Government lawyers added that a jury had heard all the witnesses and concluded that the stepfather's conduct was not unreasonable in the circumstances. They argued that the boy and his natural father had not exhausted domestic remedies and could have brought a civil action for assault, which carries a lower burden of proof.

Lawyers for the boy argued that the "reasonable chastisement" defence was the same for civil and criminal cases and that a civil action could have involved the boy reliving the trauma of the prosecution, with his mother again giving evidence against him.

The preliminary decision left the boy's stepfather bemused. "If they eventually rule that we had violated his rights, then that will be ridiculous," he said. "But I welcome the hearing because it will give us the chance, hopefully, to put our side of the case. I hope that in the end common sense will prevail."

The European ruling infuriated backbenchers. Sir Ivan Lawrence, the chairman of the Commons home affairs select committee, said: "We must seriously consider how long we are prepared to continue to put up with this kind of charade of appealing to European courts."

Sir Malcolm Thornton, the chairman of the select committee on education, described the ruling as "utterly bizarre". He added: "The world is slowly going mad."

Anne Davis, of Families for Discipline, said: "This raises the stakes, because it is not just a matter of parental responsibility, but brings into dispute a matter of British law." Mrs Davis, who as a childminder won a legal battle against a council to establish the right to smack, said the "reasonable chastisement" defence was crucial. "Its removal would open the door for any child to say to their parents: 'You can't smack me. I will ring ChildLine.' They are already doing that and it is doing untold damage to family relationships."

Campaigners against physical punishment were delighted. Penelope Leach, a child psychologist and co-ordinator for End Physical Punishment of Children (Epoch), said: "I am very pleased because this is the test case we badly needed. What we want is the same protection for children that adults have and that is a question of law. I hope this case will effectively outlaw corporal punishment."

Rachel Hodgkin, of the National Children's Bureau, said: "The case is unanswerable. It is not about smacking. It is about a severe caning and not many people support that."

Children are protected against parental violence by the range of laws governing violent behaviour by adults and by the specific provisions of the Children and Young Persons Act. A parent alleged to have inflicted violence on a child can be charged under the civil law with common assault, or, in more serious cases, with offences such as causing actual or grievous bodily harm. Conviction can lead to prison sentences.

But, according to Barbara Joel-Esam, a lawyer at the NSPCC, there is a defence of "reasonable chastisement" open to anyone accused of such offences. "The parent can say this is their child and, as long as they have behaved reasonably, as long as the punishment is reasonable, then they have a defence."