Smacks of hypocrisy

Not so long ago David Lammy was criticised for suggesting a relaxation of smacking laws, it was said he had sought to blame the summer riots upon the disempowerment of parents embodied in laws preventing the exercise of parental discipline. I’ve long since lost the original article I had read, but what had struck me at the time was two things: the assertion that most members of the public don’t understand what the law says about smacking their children, and the fact that the law as drafted is difficult to interpret in the case of dark skinned children who could be smacked without the “visible reddening of the skin” that is so crucial to the legal parameters. As a parent this is frankly something that I have paid scant regard to. I don’t parent by law, I parent by judgment. And my judgment is that, apart from being wrong, smacking is unlikely to be a helpful strategy in parenting and the managing of behaviour in the long term. But I also understand that some parents do smack, out of anger or desperation – often because their parenting “tool box” is empty and they have no other strategy. I don’t condone it, but I do understand why it happens.

I have found a superb article by Zoe Williams in the Guardian – Why David Lammy is wrong about smacking, and I commend it to you. A taster:

Courtesy of leah.jones on flickr

Courtesy of leah.jones on flickr

Lammy says, apropos his book, that this is racist law, because a black child’s skin is different and won’t redden. This makes an arresting point about how the law can ignore a section of society without noticing. But I don’t think it really stands up the assertion, made by him and others in this pro-smacking lobby, that the law is a muddle, and that the average person thinks all smacking is banned. If the “average person” is confused, then all the “average person” has to do is a simple internet search. I am sick of hearing new, usually bad policy ideas justified by this straw man who finds everything confusing but refuses to look anything up.

I have to make the obvious point, here, that even if you think children have very few rights, we all accept that they have some. You can’t kill your kid if he is naughty; you can’t break his bones; you can’t stub cigarettes out on him; so there’s room for the state to interpolate itself somewhere between the parent and the child, and if it’s not at the stage beyond reddening the skin, where on earth is it? Significant bruising? Hairline fractures? It’s never clear where the pro-smacking lobby wants to see this line drawn, or if it is seriously contending there should be no line at all.

So what does the law actually say? I don’t actually think it’s as easy to google as Zoe Williams suggests. The Children Act 2004 s58 says that “in relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.” The offences that are covered in subsection (2) are s18 / s20 offences – that is wounding or GBH (Offences Against the Person Act 1861), s47 assault occasioning ABH (also OAPA) and cruelty to persons under 16. S58 also says that battery causing ABH cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment. This leaves open the possibility of a reasonable punishment defence only in cases of battery causing ABH [edited 16/2/12 – see comment from Mark & reply].

All well and good, but how does one know whether punishment will fall under the category of battery causing ABH [edited 16/2/12 – see comment from Mark & reply] (defence available) or assault occasioning ABH (defence not available)? According to the CPS charging standards where the assault leads to  “more than a temporary reddening of the skin, and where the injury is more than transient and trifling” a battery charge is inappropriate and there is accordingly no defence of reasonable punishment. See the CPS website here. Now I’m no criminal lawyer, but one thing that is apparent from the CPS material is that the defining line between common assault and ABH is whether there is an injury that is more than reddening of the skin – the guidance sets out examples, cuts, abrasions, swelling etc. It seems to me that when one focuses on the question of whether injuries above and beyond reddening are present, the argument that the law is difficult to interpret where dark skinned children are involved rather evaporates. The question is whether or not bruises, cuts, abrasions, swelling is visible and that is capable of being ascertained well enough regardless of skin colour (with the possible exception of bruising, which can be hard to identify).

And of course The Children Act 1989 relies upon the notion of “significant harm” as a trigger for state intervention of another kind, via care proceedings. And routine use of smacking as a stock parental control method may well invite the attention of social services concerned about the risk of significant harm, even if such conduct is unlikely to result in criminal conviction.

But actually what is really interesting about the Williams article, is that she goes on to explore the class issues that are at play here, the idea being expressed is in essence that middle class parents like her (and me) exist in a sort of different dimension to those at the rougher end of things:

The problem, [Lammy] says, is that this kind of parent rarely, probably never, comes into contact with the social services, never has to see their parenting put under the microscope of a stranger’s judgment, never has the threat of their child being removed, never loses a job because they slapped their kid in the supermarket and were reported. They never have to deal with the real face of the state, which is all intervention and no support.

And I have to acknowledge that this is a reality which is often brought home to me when I listen to my clients telling me how they first came to the attention of the state, what it was that triggered intervention, when I read contact records that contain criticisms which could equally well be applied to my own parenting. That’s not to say that intervention is not often justified, and a minor incident may well trigger intervention because it is the tip of a seriously big iceberg of neglect. BUT. People “like me” aren’t on the radar. And that’s not because we are perfect parents, although we are more likely not to be disadvantaged from the outset by a poor or non-existent parental role models. But perhaps we start off benefitting from a presumption of “low risk”.

After the birth of my first baby I dutifully trudged to the health visitor’s clinic week in week out for the weighing – eventually one nice lady said “You don’t have to come any more dear. It’s not really for mums like you”. I guess that’s prioritisation of resources. When I was struggling, drowning, despairing with feeding difficulties after the birth of my second baby the health visitors, midwives and assorted nice ladies never doubted I could cope (I did. My husband did). And when I first presented my son to the out of hours GP with a purple egg on his forehead (he fell headlong into the high chair since you ask) I fully expected an immediate strategy meeting to be convened. Instead, the doctor looked bemused at my volunteering of an explanation he didn’t feel he needed to hear. Don’t get me wrong, this is not an acknowledgment that my parenting is as shockingly poor as some of the parenting that ends up exposed through care proceedings, but I sometimes wonder if my kids would be at risk of fall through the child protection net if it were. Because no-one’s looking for it.

My one experience of the other side was fleeting and quite recent: my husband drove me to a GP appointment so I could get my hands on some antibiotics for my self-diagnosed tonsillitis. I was dizzy: driving seemed a bad plan. I lolled on the bench in the waiting area moaning and griping for an hour, being pacified by hubby until I was called in – and hubby plodded into the doctor’s room behind me, on autopilot. He doesn’t normally come to the GP with me, but I suppose the last time we had been together had been for ante-natal appointments or together with poorly babies, so it was a sort of habit. And discussing my tonsils is not something I’m very secretive about so I didn’t think much of it, nor did I bother to explain it to the GP. Which was fine until my husband reached over and removed a stray hair from my jacket. And then the dv antenna went up – visibly. Was I ok? I seemed a bit down. Was anything bothering me? No, I seem down because I’ve got tonsils the size of golf balls and I’ve been sitting in your waiting room for an hour when I should be in bed. She looked at my tonsils, saw they were indeed the size of golfballs, uttered a significant “Ohhhh” and the antenna instantly went down. Not controlling behaviour and a subdued, petrified victim; just a supportive husband and a poorly wife. But both of us knew we’d been sized up as potential dv perp and victim. And neither of us found it a nice experience. I found myself suprisingly offended, even though the rational me said “Good, that’s how the system should work”.

I started this post with the intention of setting out a handy guide to the law on smacking. But this blog post isn’t really about that any more. It’s turned into something more than that. Writing it has exposed some of the internal conflict that I (and I suspect a lot of other mums working in the family justice sector) feel about how the state interacts and intervenes with us qua parents.

No, the definition within law isn’t really the issue. It’s about the way that some people exercise their parental judgment under the shadow of potential state intervention, whilst others of us operate largely by our own judgment and common sense. Some parents are well equipped to cope with the tough job of parenting and have good and trusting support networks, others have very limited internal resources, negligible external support and may find it difficult to trust either partners or professionals. I don’t agree with everything Lammy says, and I don’t support a change in the law, but I share some of his sense of other worldliness, of something not quite right. But the something not quite right isn’t the law itself. Its in the way the state operates its’ relationship with parents.

Not so long ago I saw a young mother hit a child in a cafe. I know her by sight, she struggles with disabilities and parents her children in spite of all sorts of adversity. She seems to be a single parent. I have often watched her with admiration, wondering how she copes. She is usually pretty serene. On that particular day she didn’t cope well. The child wasn’t injured, but she shouldn’t have done it. I was the only one who seemed to have noticed. And I agonised for days over what I should do. I thought she needed support. I knew that by reason of her disabilities she may well already be on the radar through her contact with services in her own right. I talked it through with different people. It didn’t help, they gave wildly different responses, from “let the social workers deal with it” to “it’s none of your business”. I felt obligated to make a referral. I decided to do so. I had the phone in my hand. But ultimately I did not. Could not. Because in my gut I feared the consequences for that family if I made that referral (even if I couched it in terms of a request for additional support) would be worse than if I did not make the call. It was quite a big thing to acknowledge to myself that this is how I felt because I’m very clear about the need to protect children, and I see the consequences of failures in child protection every day at work. Rationally, intellectually, I should have made the call and trusted the system. Had the information come to my attention in the course of my professional work I’d have been obligated to refer, and I would have done so without compunction. But as a mum I couldn’t do it. Because no mum is perfect. And social services are imperfect also (I say that notwithstanding that there is much good work, much genuine effort and care as demonstrated by the BBC Protecting Our Children series). I still worry about it. I am not sure I have done the right thing. Perhaps I am a coward.

These things are complex. We (professionals) criticise parents or extended family members for failing to protect all the time. We advise them that it’s an straightforward choice – just put the child first. Well, I discovered that those choices are not easy. Not easy at all. And for for someone who has grown up in a pocket of society where social services’ job is understood to be to take children away – how much harder still? Again, I don’t condone, but I do understand.

And state intervention in response to smacking – that’s not black and white either.

21 thoughts on “Smacks of hypocrisy

  1. Lucy,

    You were absolutely right not to make that call. Do not beat yourself up about it one little bit!

    I need to talk to some good friends who are Mums but I think I can guarantee they would agree.

    I need to watch the rest of ‘Protecting Our Children’ first trying to keep an open mind but it’s not easy.

  2. A really helpful article Lucy and actually it did enable me to understand the law on physical chastisement rather better than I did before. From your description of what happened in the cafe, it doesn’t sound as if s.58 Children Act was infringed. If it wasn’t, would a referral be justified anyway?

    • No I don’t think it was a s58 case, but of course what is also relevant is the risk of non-physical harm i.e. emotional or psychological harm, as described in the 1989 Act. One can cause harm without committing a criminal offence. (I know you know this, but not all readers are lawyers).

  3. “All well and good, but how does one know whether punishment will fall under the category of battery causing ABH (defence available) or assault occasioning ABH (defence not available)? … This leaves open the possibility of a reasonable punishment defence only in cases of battery causing ABH.”

    You’ve confused the law, though you get to the correct conclusion later, which is basically that if injury in excess of that associated with ‘common assault’ is caused, the defence is not available. I’m with Zoe Williams on this – it’s actually all very straightforward.

    Members of the public don’t need to know what legal name is given to the offence they’re committing (which is why confusing them in this blog is a shame!) – just that if they do more than temporarily reddening the skin they’re almost certainly committing a criminal offence.

    In criminal law you can have a battery (more formally ‘common assault by beating’ and often informally used interchangeably with ‘common assault’, though actually you can assault someone without beating them). Up from that in seriousness is assault occasioning ABH (s47). The reasonable punishment/lawful chastisement defence is available for the former, but not the latter (or anything more serious – eg s20/s18 OAPA).

    s58 also provides that in civil law, where the *tort/civil wrong* of battery is committed AND it results in ABH (as defined by the criminal law) the defence is similarly unavailable.

    As you say, where the injury fits with ‘common assault’, the defence is available (though whether it succeeds is another thing entirely).

    Contrary to what you say, no assault resulting in ABH could ever be defended by asserting reasonable punishment/lawful chastisement. There is no criminal offence of ‘battery causing ABH’.

    And actually if you Google ‘smack child law’ your first hit this afternoon is a pretty accurate BBC news article from 2005. The 2nd-5th links look pretty much on the money too.

    I agree that whether or not dark skin *reddens* as visibly as light skin is very probably immaterial – to commit ABH you’re doing more than (temporarily) reddening the skin. I also agree that just because darker skin shows up bruising (which could be an ABH) less obviously than does white skin doesn’t mean the law ignores the darker-skinned, it just means that evidence of a particular unlawful assault might be less obvious. That’s a result of pigmentation, not legislation.

    Lammy’s got it utterly wrong in my view.

    • Thanks Mark – I read your comment and thought “that’s what I said, isn’t it”? But on re-reading my explanation though I think I muddled my terminology (tired, crime not my area etc) and as you quite properly noticed I had inadvertently created a new offence of “battery causing ABH” – you will see I have amended it – twice! Thanks for spotting. And for commenting. Fingers crossed I’ve got it right now!

  4. the difficulty is that the line between damage required to make out abh and that which remains as common assault is wobbly and hard to understand. quite often i find myself defending common assaults and wondering why they haven’t been charged as abh – and vice versa. for once i can’t blame the cps as i don’t know how i interpret the case law on it either. and that’s merely in terms of pure physical harm. nightmare.

  5. An ‘anti-smacking’ law was introduced in NZ a few years ago.
    Thee has been controversy ever since – criminalising good parents etc. Just google NZ anti smacking law.
    Child abuse continues at much the same rate, especially the horrific cases. Law or no law personally I’ve been a committed non smacker

  6. Great article especially re the unspoken but all too obvious divide which most professionals operate between families in respect of whom concerns are reported and families where they just ‘have a chat’. It is just as you say and means that middle class parents are able to get away with behaviour which would be condemned in parents being assessed by social workers – I know there have been situations with my kid at school where I half expected a referral but then realised that it just wouldn’t happen because of how they see me. And this is linked to a bigger problem: because Social Services work only with families already multiply disadvantaged, the middle classes have no idea just how much strain there is on the system. Remember the outrage in the press when middle class babies were being removed because of fears about SBS? And how appalled those families were at how underfunded the system is? Until the sale standards apply across the board, the only familiea affected by the operation of child protection services will be those least able to ensure that the system works and is fair.

  7. As usual the PC brigade are out in force telling everyone how to bring up their own children.I never smacked any of my own 7 children or grandchildren,(just waved a slipper at them with menace) but I reckon other parents should be free to do whatever it takes to control their children providing they do not cause serious injury.Broken bones but not one small bruise etc
    Let the police decide as they did (before the “SS” interfered)whether a child has been injured and scrap these PC laws that drive so many of us to quit the UK in disgust.

  8. I can’t imagine ever waving a slipper menacingly at my child and it has nothing to do with being “PC” I simply don’t want my daughter to ever feel that she is at risk of any form of physical assault from me- call me crazy.
    The last time I checked, some 20 countries have implemented a blanket ban on smacking. None of them seem to have descended into chaos and many rank higher than the UK in terms of child wellbeing, according to UNICEF.
    It is high time the UK followed suit and removed all ambiguity in the law for everyone.

  9. Northern lights only proves the case that all parents are different and should not all be compelled to act in the same way.
    I can only repeat ,that the police should intervene only in the case of SEVERE injury and otherwise parents should be free to act in the way THEY and not social workers or the government see fit.

  10. Northern Lights

    Actually, Ian Josephs your post shows exactly why we need the state to intervene and reinforce the UN Convention view as many other countries have done.
    You admit to threatening your children and grandchildren with violence and state that it had the desired effect; it can only have had that effect because the threat was real and backed by previous experiences where you did cross the line and assault them; otherwise there would be no deterrent effect, would there?
    All parents are different- true, but that is no reason to accept that some use violence and the suggestion that the state should only concern itself with “severe injury” (to little children for Christ’ sake) is despicable.

  11. Northern lights: with respect your support for the “nanny state” where busybodies are forever telling us how NOT to bring up our own children,how to preserve our own safety at all costs and never to take risks even to save others,and to continually watch what we say in case we might offend an ethical or sexual minority,That really is despicable.My seven kids are all adults aged from 30 to 52 so the days of the slipper are long gone ;25 years at least so I care not at all whether you believe me or not when I SAY “THE THREAT WAS GREATER THAN THE EXECUTION”So I never used it . But those who claim the moral high ground by bossing others around should quit now while they and the rest of the PC lunatics are regrettably ahead !
    If parents want to smack kids they should be allowed to do so even if the skin is reddened (poor things),and so should policemen and teachers ! It is despicable to equate the “slap on the bum “that has cost many parents their children (to feed the adoption and fostering industry ) with the broken bones and overall body bruising of baby p,Victoria Climbé, and the like ..Callously left to die by intimidated or unfeeling social workers …..Now that is despicable and worse still “devoid of all common sense!”

  12. Ian Josephs,

    Your contempt for the rights and welfare of children is palpable but, thankfully, not shared by teachers and police officers.
    Children are not taken off their parents lightly by Social Services and certainly not to feed an “industry” as you conspiracy theorists continue to assert without a shred of evidence, let alone reason or common sense.
    You appear to believe that only “severe” injury should be a cause for state intervention- that is as ridiculous as it is contemptible. Try applying that to adults: “I only punched him/her, Your Honour. He sustained no broken bones or lasting injuries so there is no case to answer.” Utterly ridiculous.
    The term “nanny state” is an interesting one as it implies care and protection and it is revealing that it is used in a derogatory fashion by those who feel that parents (and in your view others in positions of authority) should be able to abuse their children with impunity. In fact, you would afford a child less protection under the law than that which is afforded a dog.
    Everyone is appalled by the cases of Baby P and Victoria Climbie but I’m surprised that you raise them as what was lacking in those horrific cases was the kind of robust early intervention from the “nanny state” that you and others in the conspiracy theorists camp so deride. No doubt, had the “nanny state” intervened to save them as they have doubtless done in other cases, you and the other members of the lunatic fringe of conspiracy theorists would have condemned the actions of the “baby snatchers” taking children from “good, decent, loving parents” to feed that “industry” that exists only in the ill-informed minds of the paranoid.
    To return to the subject of this thread, you haven’t addressed the fact that some 20 countries in the EU have implemented a blanket ban on smacking, having considered the arguments for and against. In terms of child welfare and wellbeing, almost all rank higher than the UK, according to UNICEF. Why do you think that is and what do you think they have all got wrong?
    Lastly, what has “PC” got to do with safeguarding the well-being of children?

  13. PC has everything to do with snatching babies at birth for “risk of emotional abuse” from loving parents and leaving severely injured children to die in misery because they are no longer suitable for adoption or fostering.
    There is no “conspiracy ” needed for the “SS” vultures to feed on the despair of deprived parents and give them to parents the PC brigade think more politically suitable.
    A fostering and adoption agency founded a few years ago by greedy social workers was recently sold for £130million!
    Foster families get average £400/week per child(some up to £1000!), and the private agencies charge more than £1500:week or more to local authorities plus of course £27,000 for placing a child with an adoptive family.Barristers and solicitors acting for the local authority,the guardian,the mother,the father,and the children routinely collect their fees for simply agreeing to interim care orders ,a process involving virtually no legal work at all .
    These snouts in the trough make our MPs look like plaster saints by comparison !
    As for evidence,there are hundreds of cases where the main crime is “failure to engage with professionals” ,and others where parents are punished without crime because some highly paid charlatan thinks kids just might be at risk in the future (using a crystal ball or dealing tarot cards?);
    Unfortunately parents are legally gagged ,and threats of prison prevent them from protesting publicly with the “evidence” of these outrages.Thes gags the say protect the “privacy of the children”.Once again however double standards apply when Panorama does a commercial for the “SS” on TV identifying parents and children at will . In the same way children are clearly identified with colour photos like pedigree dogs in the Daily Mirror and other magazines offering up offending the snatched children for adoption!
    Shame on those who after the war, maybe supported 300,000 kids being sent to Australia and New Zealand for forced labour and sexual abuse .That was around 60 years ago but I have no doubt most folk who look back now in disgust at that episode will (if still alive) look back with equal disgust at the “SS” baby traffiking of today.

  14. I should add that the problem with outlawing smacking is that one smack can see children snatched from loving parents and put into so called “care” ,where the chances are that they will end up in prison or prostitution,or both !

    • Ian, that’s a non-sequitur. Highlighting failures in the system that protects children from abuse (care) does not justify the behaviour that leads to them ending up there.

  15. Lucy,I repectfully disagree ! Before children are removed for “risk” the family courts should weigh up the “risk” they would run of jail or prostitution if taken into care.Care is usually a worse risk than a risky family.
    Northern lights theory that I would give children less protection than that now enjoyed by a dog is patently absurd.
    Have you N.A ever heard of a dog being confiscated because its owner gave it a smack on the behind?
    Baby P would no doubt have been removed early if the S.W had diagnosed emotional abuse instead of physical.Unfortunately social workers run a mile from severely injured children with aggressive carers.Emotional abuse cases are more than double the physical because no parents can defend themelves against the idiot prophecies of the charlatans selected by the local authority for their continued loyal support !

  16. Northern Lights

    Sweden was the first European country to outlaw smacking in 1978. There has to date been one prosecution and the ban is now supported by an overwhelming majority of parents.
    The main outcome of such a ban is to encourage a change in attitude, not unlike making seatbelts compulsory.
    Children are not, nor will they be, removed from otherwise loving and protective parents because of one isolated incident. Some of these abusive parents may present that lie to Ian Josephs, Brian Gerrish and their ilk but it is just that- a lie.
    The term “failure to engage with professionals”
    usually means that a child has been identified as being potentially at risk and the parents have either sought to cover it up or, the abusive and neglectful behaviour having been identified, have refused all help to address it; often because they regard children as their property to do with as they please or simply don’t have the most basic of parenting skills to parent their children to an adequate standard. Because that is all that is required- that their parenting be adequate.

    • Sweden is different. They really provide good money for child care. In UK, “care” means SS and jobless fosters got huge money, while children are left for prostitution.

  17. I am not in fact against the anti smacking law,just the ridiculous way it is interpreted.
    I have been involved in countless cases where one small insignificant injury has resulted in care proceedings followed by yet another broken family.And yes I have seen the court papers in most of these cases with allegations of just one small bruise or scratch etc followed by the “padding” ie phrases such a “putting your needs before your child’s”,”RISK OF EMOTIONAL ABUSE””failure to bond with a child”,”failure to engage with professionals”(meaning being suspicious of child stealers !), cluttered home,chaotic lifestyle(does not conform to the norm).etc etc Any of these slogans will do….
    Parents should only be punished by child removal if they commit a crime,not because some tame “psy” thinks they might commit one in the future !
    No it’s not a conspiracy ,just a lot of greedy people individually making money out of other people’s misery…..

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