Posted on | February 15, 2012 | 20 Comments
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:
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.