After a recent High Court decision, the NSPCC has raised concerns about references the judge made about considering allegations of physical abuse in a “cultural context”.
The court case was a wardship matter, where the court is asked to make a child a “ward of court”, in itself not a very common application. It included disputed allegations of serious domestic violence between a 7 year old boy’s parents, as well as allegations of abusive behaviour towards the child himself.
The parents had come to England from India in 2006, and their son was born here in 2007. The child had said that his father hit him with a long belt, on his back and leg and had nodded when asked if this hurt him and left marks. The father had said that he had used a “slap or a tap” at times to “keep him disciplined”, but denied ever using a belt. There had been both positive and less positive assessments of the boy’s care by his father.
In a case where there are disputed allegations, it is up to the judge, who hears and reads all of the evidence, to decide what is proven. In this case the judge decided that there had not been “punitively harsh” treatment of the child of the kind that she considered amounted to physical abuse. This was entirely a matter for the judge, but it was her following comments which have caused the NSPCC concerns – “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…[the child]..did not appear to have suffered more than sadness and transient pain from what was done to him”.
The NSPCC say in their response:
- Children need to be protected irrespective of cultural sensitivities.
- Different practices are no excuse for child abuse taking place in this country and the law doesn’t make that distinction.
- Every child deserves the right to be safe and protected from physical abuse and the courts must reflect this.
The Children Act 1989 has a definition of harm:-
s.31(9) …..“harm” means ill-treatment or the impairment of health or development [including, for example, impairment suffered from seeing or hearing the ill-treatment of another];
“development” means physical, intellectual, emotional, social or behavioural development;
“health” means physical or mental health; and
“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.
s.31(10) Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.
A court will look very carefully at physical contact with a child if alleged whether in a family case or criminal case, but a defence of “lawful correction” does remain a defence to a charge of assault on a child under 16. Many people would not condone any physical punishment of a child, and for example corporal punishment is not inflicted in our schools or state care system.
So, is there a place for considering “culture” in defining whether a child has suffered abuse or is at risk of that? The approach of our courts has generally been that whilst cultural context is always very important, indeed essential in understanding a particular case, ultimately the question of what amounts to “abuse” or “harm” is based upon a UK interpretation.
0 Comments