David Lammy doesn’t know the law on smacking children
UPDATE : Since clicking the ‘Publish’ button I spotted the article on Liberal Conspiracy which covers pretty much the same ground as this article – Give it a read, there’s a link at the bottom.
The Daily Mail in this article on David Lammy MP’s recent comments regarding the smacking of children, Labour MP: Smacking ban led to riots because parents fear children will be taken away if they discipline them perhaps goes overboard a little. I can’t help but feel though that David intended his words to precipitate just this kind of reaction – and I’m unsurprised by the Mail’s interpretation of his words. They may have got it a little wrong, but this gist of it is probably bang on.
I’m not going to argue about whether it’s right or wrong to smack children, or whether those of us who have been smacked as children are more or less likely to riot than those of us who were not.
I would like to set the record straight on what the Mail calls “The ban on smacking children” though
The Mail article states :
The Children Act of 2004, introduced by Tony Blair’s Government, removed the defence of ‘reasonable chastisement’, meaning injuries as slight as a bruise can result in an assault charge. Guilty parents can be jailed for up to five years.
While Mr Lammy, (in his on-line web-chat for Mumsnet, says)
Parents in Tottenham continually raise with me the real pressures of raising children for example on the 15th floor of a tower block with knives, gangs and the dangers of violent crime just outside the window they say they no longer feel sovereign in their own homes and the ability to exercise their own judgement in relation to discipline and reasonable chastisement has been taken away from them. Its too easy for middle class legislators to be far removed from the realities of the typical single mum struggling with these issues and so in that context in the book I do say that we should return to the law as it existed for 150 years before it was changed in 2004.
The legislation currently talks about “a reddening of the skin” not completely sure how this applies to my own children! Previously the courts determined whether parents had used “reasonable chastisement” or “excessive force”.
So what’s the truth of the matter ?
Well the Children Act 2004 is apparently the relevant piece of legislation (to a point) http://www.legislation.gov.uk/ukpga/2004/31/section/58 . It does remove the defence of “reasonable chastisement” in cases where a parent or guardian is accused of wounding, causing grievous bodily harm, assault occasioning actual bodily harm or cruelty to persons less than 16 years of age.
The defence is retained though where a charge of common assault is made. This would be an assault which resulted only in bodily harm – not “actual bodily harm”. This is a lesser charge.
The statement in the Mail is misleading – an assault which caused a bruise, would have caused actual bodily harm – it would not therefore be merely an assault.
The key expression here though is “actual bodily harm”. What does it mean ?
The Children Act 2004 does not redefine this. It simply states the existing law. That’s right David, the one from over 100 years ago. The Offences Against the Person Act 1861 http://www.legislation.gov.uk/ukpga/Vict/24-25/100 – specifically section 47 of the Act which has been interpreted by lawyers for a long time as meaning that :
Common Assault is one which causes only actual bodily harm – for example it might be a smack which leaves a mark, but which quickly fades, and is only transient.
Other assaults are more serious – as they involve ‘actual bodily harm’ – which although perhaps not permanent, has more than a merely transient duration such as a bruise, or a scratch.
The reference to “reddening of the skin” is used in the Crown Prosecution Service’s guidance on applying this law. http://www.cps.gov.uk/publications/research/chastisement.html
The Charging Standard states that for minor assaults committed by an adult upon a child that result in injuries such as grazes, scratches, abrasions, minor bruising, swelling, superficial cuts or a black eye, the appropriate charge will normally be ABH for which the defence of ‘reasonable chastisement’ is no longer available.
However, if the injury amounts to no more than reddening of the skin, and the injury is transient and trifling, a charge of common assault may be laid against the defendant for whom the reasonable chastisement defence remains available to parents or adults acting in loco parentis.
Although this guidance is very influential it is not a definitive statement of the law. It is not as Mr Lammy says “legislation” and in any case is used to clarify a law drafted in 1861 – the one which David Lammy wishes to return to – a time when relatively few people with black skin lived in the United Kingdom, and it was perhaps unsurprising that generalising statements were made. (I have unfortunately seen quite a few black children with reddened skin as well, but let’s not get sidetracked).
So to clarify if you have been accused of hitting a child in such a way that you’ve cut them or bruised them, then the defence that “I was only disciplining my own child as I believe any good parent should” just will not wash – it’s no defence.
If however you’re accused of hitting a child in such a way that you’ve not left any mark that lasts longer than a few minutes (which presumably includes the red hand mark I remember vividly from my own childhood) – then you can say exactly that “I smacked my child because he was being naughty” – it is still legally a valid defence. It would be up to a jury, or magistrates to decide whether you were guilty. If indeed you were ever prosecuted.
The fact is that the Children’s Act, Section 58 is quite clearly NOT a ban on smacking. What it is though is a clear statement that smacking is also NOT something which would cause “actual bodily harm” to a child. Quite right too – Although the Mail talks of “injuries as slight as a bruise” – just ask yourself (especially if you’ve been smacked by your parents, or smacked a child yourself) – just how hard do you have to smack a child in order to leave a bruise ? I promise you, the hand print I mentioned earlier, left quite a mark on my memory – but it sure as hell left nothing to show for it on my leg.
The Children’s Act doesn’t take away any other defences either – so if you find yourself on the 15th floor of a block of flats and your 15 year old is coming at you with a knife, your defence is not going to be “I slapped him because he was being a tad rebellious” – it is going to be “I acted in self defence because I thought he was going to stab me”
So there is no smacking ban.
This stuff is easy to look up.
It’s even easier for David Lammy MP. That’s because he is a barrister. A man with a first class honours degree in Law.
Well you could have fooled me David.
- What child-smacking ban? Why Mail was wrong on the law (liberalconspiracy.org) – <– Have a look at this one, as mentioned above !!
- David Lammy MP: Smacking law confusion contributed to riots – Metro (metro.co.uk)
- Labour MP David Lammy: Smacking ban led to riots (dailymail.co.uk)
- Hitting a child harder will not stop riots, Mr. Lammy, but it may cause them – Daily Mail (dailymail.co.uk)