This was the headline of a piece in the Daily Telegraph, similar stories in other newspapers.
It ticks all of the boxes for a Telegraph story – we have here a High Court Judge (and as she is female, for some reason it is considered appropriate to set out within the story her marital situation and how many children she has), social workers, ‘secret’ family Courts and immigrants being treated more favourably than UK nationals. It’s a great story for the Telegraph.
The story leads with this
Immigrants should be allowed to “slap and hit” their children because of a “different cultural context” when they are new arrivals in Britain, a High Court judge suggested yesterday.
and it has some quotations from the Judge, and a bit of rent-a-quote from a politician.
Is it accurate?
Well, I don’t think is misleading. I don’t think that the Judge intended to convey that meaning, but the meaning that the Telegraph have derived from it is the fault of the judgment not the fault of the reader. I also don’t think that the Telegraph have sensationalised it or are wrong to report it. I don’t think that it says everything that the Telegraph believes that it says, but I think that their reading of it is one that a common sense reader would derive from it.
Re A (A child: Wardship) 2015
[I’ll quickly hold up my hands – I read this on Tuesday when it came out and my reading of it was that the case was far too dull to blog about – I missed paragraph 67 when I first read it. I’m like the guy who decided that Fred Astaire ‘can’t sing, can dance a little’ ]
This is the paragraph that has caused all of the fuss
67.I do not believe there was punitively harsh treatment of A of the kind that would merit the term physical abuse. Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. In this instance, and on the basis of his ABE interview, A did not appear to have suffered more than sadness and transient pain from what was done to him.
A common sense reading of that is that we must make allowances in law for a parent who has just come to this country and that social workers should treat them differently. Which is the Telegraph’s take on it. They aren’t misquoting or misleading – they report what the Judge said and then report how an ordinary person would read those remarks.
The allegations were being made in private law proceedings (the argument being between mum and dad , rather than public law proceedings where the argument would be between social workers and parents).
The allegation made by mum was that the father had slapped the child twice. The child when interviewed by the police said that dad had hit him with a belt, causing him pain and leaving marks which went quickly. Father said that he smacked the child as part of normal discipline. The job of the Judge therefore was to decide which of these three versions (if any) was correct, and what impact that this would have on any decisions about whether the child should see his father and spend time with him. [There were also a lot of allegations between mother and father as to domestic violence, and the Judge found that father had been violent to the mother including an attempt at strangulation with a head scarf and a violent push]
- One of the last matters for discussions arises from A’s physical assault allegations comprised principally within his ABE interview. In the context of a question from the officer about what he did on 17 October – and seemingly out of the blue – A said, “I did my homework … With his belt, he kind of hits me.” A little later, A is asked, “OK and how does he hit you?” A who was by then looking directly at the officer, said, “With a belt … A long belt.” He described being hit on his back and leg and said it was “kind of fast, to hit me.” Asked how he felt, A said “Sad … But I’m little brave … I’m not scared of him… But normally I’m sad.” In response to questions as to whether it hurt, did it leave marks and whether they ‘went quite quickly’, A did not reply verbally but nodded his head to all three inquiries.” Towards the very end of the interview, A responded affirmatively when asked if he missed his father.
- The father wholly denies ever striking A with a belt or otherwise. He described with evident emotion that if he could not see A he does not “want to live.” He can “only say (he) never hit A with a belt” and he is “dying to see A.” The father also described what he meant by a “slap or a tap” the words used when he was interviewed by the police in connection with A’s allegations. He said this was not to slap A “badly but to keep him disciplined.”
At the end of my determination on this issue I make the following observations. I did believe the mother when she told me she had not said anything bad about the father although it had been for her “really horrible being separated from her son.” The mother also said that during the time they were together, she had seen the father slap A twice and there had been occasions when he had been pushed and shouted at. She had not told her Solicitor because there had been “so many things.”
The conclusion of the judgment is that what father did to the child was not something that amounted to physical abuse (and thus, that it would not amount to any criminal offence).
The law in this country is that it is lawful to lawfully chastise a child (that’s a bit redundant, but I was trying to use the emotive word ‘smack’). The line is crossed where the physical discipline becomes a criminal offence.
The Telegraph piece says:-
The Children’s Act 2004 made it illegal for parents in England and Wales to chastise children if blows led to bruising, swelling, cuts, grazes or scratches, with the offence carrying up to five years’ imprisonment.
This is what the Children Act 2004 actually says (it is much, much much less clear cut than the Telegraph summary ) – picking through all of the legal jargon, what it says is “If you have hit a child in such a way that a criminal offence may have resulted, it is not a defence to cite reasonable punishment’ – for most of those offences, the impact on the child would be that the injury caused bruises, marks or fractures (ABH, GBH) or cuts or breaks to the skin (Wounding), but the offence of cruelty or battery don’t require those things.
If you were thinking that the Telegraph has given you legal advice that you can beat your child as long as you don’t leave marks or break the skin, you’d be wrong. [For example, the sack of oranges scene in the Grifters]
(1)In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.
(2)The offences referred to in subsection (1) are
(a)an offence under section 18 or 20 of the Offences against the Person Act 1861 (c. 100) (wounding and causing grievous bodily harm);
(b)an offence under section 47 of that Act (assault occasioning actual bodily harm);
(c)an offence under section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under 16).
(3)Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.
(4)For the purposes of subsection (3) actual bodily harm has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861.
(5)In section 1 of the Children and Young Persons Act 1933, omit subsection (7).
Right, so let’s get back to that first paragraph of the Telegraph story – the lead of the whole article
Immigrants should be allowed to “slap and hit” their children because of a “different cultural context” when they are new arrivals in Britain, a High Court judge suggested yesterday
I think that it is a fair reading of the case that the Judge suggested that. I don’t think it is quite what she meant, but it is a common-sense reading of what paragraph 67 says.
If, however, someone reads this to mean that immigrant parents have a ‘get out of jail card’ or that they can hurt their children in a way that would get a British parent into trouble but they would get off scot-free, and that this is now the law in this country, that wouldn’t be right.
Firstly, as the case was not decided on that particular point, the remarks would not be binding on any other Court.
Secondly, the Judge wasn’t deciding here that as a matter of principle different standards apply. She was taking into account the individual circumstances of the parents in deciding whether what happened to this child constituted something that would be a barrier to the father having contact with him.
I can’t defend the case entirely. I think it is significantly flawed. When I read it, I can’t ascertain whether the Judge found that
a) As the child said in the police interview, father hit him with a belt on his back and legs and that it hurt, it left marks but the marks went quite quickly; OR
b) as the mother said, she had seen father slap the child twice; OR
c) as the father said, that he slapped or tapped the child as reasonable discipline
It is such an important point that it is really quite problematic that the Judge doesn’t say whether she concluded that the child’s account was right or that father’s account was right.
For example, if the Judge had said :-
I find that the father did smack his child on the back of the leg for being naughty, but that this caused no lasting harm to the child.
I suspect that it wouldn’t really be in the Press to the extent that it is. I certainly think that the majority of the Telegraph’s readers (and possibly mine too) would nod in agreement with that sentiment.
Whereas the reading of
The father hit his child with a belt, but that’s okay because he was an immigrant
is obviously newsworthy. [And the readership of the Telegraph and my readers would not be nodding in agreement, but reaching for either a pen, a keyboard or a revolver]
And because such an important piece of information is not clear in the judgment (we know that the Judge concluded that WHAT happened to the child was not that serious, but not WHAT she concluded had happened), it does cause legitimate confusion.
The inference has to be that it was the hitting with a belt that she believed happened (since if it was the smack for reasonable punishment, then most of paragraph 67 doesn’t need to be said at all, since this would be within the boundaries of acceptable parental behaviour, whether the parent was from Clapham or Calcutta)
and that then leads to the Press reporting that the Judge is suggesting that a parent from Calcutta in this situation is to be treated differently to a parent from Clapham.
Going back to my original question – is the Telegraph piece accurate? Well, it isn’t inaccurate. The judgment here is unclear about what father was found to have done, but then goes on to excuse what he has done. Part of that is because the effect on the child was very temporary and transient * , but part is the cultural issue set out in paragraph 67.
* There might be those who consider that this is not a helpful way of looking at it – a child can recover from the physcial signs of a bruise on the face in a few days, but the emotional impact can be much more than that. I haven’t been a child for many many years, but I can still vividly recall each and every occasion that an adult struck me in rage as a child. Whereas the reasonable smacks I got for being naughty are long forgotten. The bruises from a violent assault fade much more easily than the memories.
I think that paragraph 67 is not terribly helpful, and if an argument was being developed in that way it needed more space within the judgment. I don’t read anyone within the case as having run the argument as “Father did X, but we do X in India”
Father’s case was that what he had done was reasonable chastistment (in Clapham) not, that what happened might have been unreasonable in Clapham but it was reasonable in Calcutta.
I’m not sure that the controversial parts of para 67 needed to go in the judgment at all, or play any part of the decision-making. This wasn’t one of those cases (and they do happen) where a parent says “I did do X, and I now know that X is considered wrong in this country, but it isn’t where I’m from”
It would be worrying if as a result of the reporting of the story (and I’ll stress that I don’t think the Press are either inaccurate or irresponsible in their reporting on this), that social workers formed the view that if they are told that a recently arrived immigrant had hit their child with a belt, they should not take that seriously and not take action if they consider it appropriate. Or that a lawyer thought that as a result of this case, that wouldn’t be capable of establishing threshold. It would also be worrying if a parent thought that they are being treated more harshly than a parent just arriving from another country would be. OR that a parent who is in a relationship with someone recently arrived from another country thought that it was okay for their partner to discipline the child with a belt.
For me, the cultural issues are about understanding, rather than condoning. There are parts of the world that tolerate, support, believe in Female Genital Mutilation, and we can understand that parents who have arrived in the UK might have those views, but we can’t condone them acting upon them. We have to judge all parents on the standards of what is acceptable and lawful in the UK, though we can understand that those standards can be different in other countries.