The Current Law on Smacking of Children in England and Wales - Essay Example

Law on Smacking of Children in England and Wales Q1 Discuss the following ment: “The current law in relation to the smacking ofchildren in England and Wales is outdated and needs to be reformed.”(1500 words) Ans.: The instinct of a parent to do everything for the welfare and the protection of his/her child is one of man’s oldest and natural impulses. Traditionally, states take up the cudgel in cases where the parent refuses or is unable to do his/her obligation and in cases of incapacitated individuals. Today, many European states have gone beyond their traditional parens patriae role and have stepped in between parent and child to regulate that natural bond. Whether this is good or will eventually spell disaster remains to be seen in the future. In the United Kingdom, Parliament has come out with a law that protects a child from his parents by limiting the corporal punishment that a parent can impose upon his child. The law, called the Children Act 2004, is Parliament’s way of pacifying critics who were critical of the country’s previous anti-corporeal punishment law. Yet, despite limiting the scope of reasonable chastisements by parents, critics continue to disparage UK laws as inadequate protection for children. Prior to the present law on anti-corporeal punishment, the standard criteria for determining whether the punishment inflicted on a child is reasonable or not was laid down in the case of R v Hopley 2 F&F 202, decided in 1860. The case held that in “correcting what is evil in the child inflict moderate and reasonable corporeal punishment, always however, with this condition, that it is moderate and reasonable.” This rather broad and largely undefined standard of corporeal punishment was subsequently qualified by the Children and Young Persons Act 1933 which declared that “it was criminal offence to willfully assault, ill-treat or neglect a child in a manner likely to cause suffering or injury to health.” The error of this law however, was that it explicitly provided an exception implying that acceptable circumstances exist where a child can be subjected to willful assault or ill-treatment. Section 1(7) of the said law stated that notwithstanding the law, parents have the right to subject their children to discipline which the law cannot interfere with. The present Children Act of 2004, applicable in England and Wales, narrows down the rights of the parents to inflict corporeal punishment on their children to mild smacking that does not show physical manifestation like lasting bruises, scars, cuts, scratches or/and swellings. Scotland goes a step farther by specifying a ban on the use of implements in disciplining a child, an absolute prohibition on shaking and blows to the head. Meanwhile, in other parts of the world, the trend towards total abolition of corporeal punishment on children is snowballing. Canada, for example which allows parent to use reasonable force to discipline their children is being hounded by calls to amend the laws and abolish the reasonable force defence. In Italy, its Supreme Court prohibited the use of corporeal punishment on children. Israel, which previously used the English case R v Hopley as standard in child corporeal punishment, now abolished it entirely in the precedent-setting case Plonit v AG in 1998. It was however Sweden which first implemented a total ban against all corporeal punishment in 1979 at home or outside. Indeed children, one of the most vulnerable members of society, deserved to be cuddled and protected by the state. It is however sad that the law has to step in between child and parent and regulate the love that naturally flows from parent to child and child to parent. In regulating parental rights to discipline their children, the state is going beyond its traditional role of merely acting as parens patriae to children but is now determining itself how a child should be reared and raise. If the state heeds public call by prohibiting parents from all forms of physical discipline on their children, it will be usurping parental authority and prerogative. Technically, the role of the state is largely administrative, that is, it maintains the security and integrity of the territory not only from foreign intervention but also from internal forces that threaten peace and order and as much as possible stays away from the private matters of citizens. However, the state has inherent rights it can invoke in the event public order and public welfare warrant such intervention: taxation power, eminent domain, and; of course, police power. The police power option can be employed by the state to protect children, who are vulnerable. However, regulating and determining how a child should be raised and disciplined implies that the state has a better prerogative over the most ancient basic and instinctive love of a parent over his/her child. Moreover, the state’s intervention could weaken and alienate the natural affection of parents to their child or the child for his/her parents. This is not to say however, that any violence against children should be tolerated even if done by parents. The general assumption is that parents are good and will act only to benefit their children. As always, there are exceptions to the general rule because parents, being humans, are subject also to the limitations of their psychological and social make-up. This is where the state should intervene. With respect to the prohibition laid down by the law Children Act 2004 on schools and on the rest of society on the use of corporeal punishment, the same is justifiable on the ground that they do not have the right to punish the child physically. And since the law has made an absolute ban on one hand, it is understandable that in delineating the position between parents from the rest of the world, the law enumerates the physical manifestations that are not covered by the defence of reasonable chastisement that parents can use in common assault cases against their very own children. The result is a law that not only undermines parental prerogatives but puts a limit to what is prosecutable which may fail to provide help to a child subjected to abuse simply because the case does not fall within the ambit of the provisions of the law. The Child Act 2004, in naming specifics, has limited itself to these physical manifestations under the doctrine in statutory interpretation called ‘expressio unios est exclusio alterius’ which means that the express mention of things excludes the others. The implication is that an irresponsible parent may cause damage, intentionally or not, to his/her child and yet be not subjected to punishment under the Child Act 2004 because the circumstances do not fall within the contemplation of the said law. A case in point is shaking which do not produce physical manifestation. Aside from the said inadequacy of the law to cover unanticipated cases, telling parents in effect what kind of punishments a parent can impose on his/her child may weaken or alienate children from their parents because parental authority is being subjected to a higher law – the state law. In other words, the state is dipping its fingers too deep in the parent-child affair. Bad parents are the exceptions and the state must preserve and strengthen the bond between parent and child rather than initiate its weakening. This it can do by helping parents to distinguish between good and bad parenting and the effects of parental neglect or abuses on their children. The state should educate, guide and apprise parents of the latest child psychological findings rather than encouraging them, in effect, to smack their children up to the point before bruising starts or swellings to show. Violence against children must not be tolerated whether done by strangers or parents because violence is violence whichever quarter it originates and against a vulnerable and helpless child, it becomes totally despicable. But neither is the state justified in depriving citizens of their parental rights to determine what is good for their children. The law Child Act 2004 does not only denigrate parental authority but it also does not serve its purpose. While it weakens the institution of parent-child relationship, its implementation likewise does not serve its purpose which is to prevent all forms of violence against the children. For one, a parent who uses a smack or two every time a child displeases him/her is worse than a parent who bruises a child once with a smack. A parent who habitually shoves and slaps a child even though these do not show physical manifestation like bruises and swellings are more abusive than a parent who has inflicted one smack which instantly bruised on a child with more sensitive skin. What will be more appropriate for the state to do is to enact laws that will look at parental abuse in its entirety and not measure abuse with every bruise or swelling that a smack shows. The Child Act 2004 is therefore not only outdated, but more importantly it is grossly ineffective and may cause the weakening of the institutional structures of family life. Q2 Explain whether the Daily Rag has the right to publish the three sets of photographs (500 words). Ans.: The Daily Rag will be civilly liable if it publishes the first two sets of photographs because they were taken and will be published under circumstances that will fall under elements of breach of right to confidence. The third set of photographs, on the other hand, lack some elements of the said civil breach and the newspaper may escape liability if it publishes them. If the first two sets of photographs, consisting of the compromising photographs of Ed with another woman and of Marge with Ed’s best friend will be published by the newspaper, the couple can allege breach of the right to confidence. The said case has three elements which must be proven: the information must be of confidential nature; it was taken under circumstances “importing an obligation of confidence”; it is used without authorisation and to the damage of a party (Coco v A N Clark Engineers Ltd (1969)). The first two sets of photographs contain highly confidential information which can cause the break-up of the family of the couple, which was perhaps the reason why they were carefully hidden. Also on line is the potential damage the publication may do to the couple’s children. The high-profile case of Douglas v Hello, a 2004 case illustrates the first element. In that case, the celebrity couple Michael Douglas and Catherine Zeta-Jones was being married under private, exclusive arrangements when a photographer secretly took pictures and sold them to Hello! Magazine. Prior to the wedding, the couple had already sold the exclusive rights to take pictures of the event to another magazine. In the subsequent case brought by them against Hello!, the Court held that “the pictures contained confidential information and that the photographer intruded on what was a private event.” The second element applies as well to the case at bar. The pictures of Ed were taken from his computer files in his laptop and those of Marge from her jewelry box. The implication is that the owners intended the pictures to be confidential and private in nature. Anent the third element, if Daily Rag pushes through with its plan to publish the pictures then it will be doing so not only without authorisation, as the pictures were stolen from where they were privately kept. In addition, the publication of those pictures will certainly spell scandal, especially so that the figures involved are public figures in wholesome fields, and perhaps eventually the break-up of a family. Lack of authorisation and damage to reputation and family life, finally qualifies the publication of the photographs as breach of the right to confidence. Anent the third set of pictures, they seem to be missing an element or two needed in establishing a case for breach of right to privacy. The element of damage, for example, would be hard to establish. On the contrary, its publication would be a good publicity stunt to showcase the wholesomeness and seemingly ideal family life of the two considering that Marge is involved with children’s charity and Ed with sports. Children Act 2004. Opsi. http://www.opsi.gov.uk/acts/acts2004/ukpga_20040031_en_1 Reader 3 W100 Rules, Rights and Justice: An Introduction to Law. Block 6 Rights Read More