Right to smack ruling prompts outcry

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A CHILD-MINDER has the right to smack children in her care, the High Court ruled yesterday, renewing

a fierce debate over the use of corporal punishment.

Anne Davis, over whom the test case was fought, said that the judgment was a victory 'for every parent in the land who believes in the reasonable use of physical discipline'. Mrs Davis, 34, who has three children, said it was 'a victory over the politically correct' who 'cannot tell the difference between loving discipline and child abuse'.

But the ruling brought instant demands from the National Society for the Prevention of Cruelty to Children and from the National Child-minding Association for a change in the law to ban smacking by child-minders. Local authorities were alarmed by the comments of John Bowis, a junior health minister, who said: 'Clearly what the judgment has done is to underscore common sense.'

Almost all councils are thought to ban smacking by child-minders and believed they were supported by Department of Health guidance. The whole status of guidance notes which underpin practice for much of the Children Act and the Community Care Act is in question, social services directors said.

Peter Newell, co-ordinator of Epoch, the Campaign to End Physical Punishment of Children, said he was 'appalled' by the judgment. 'Only in the UK would a woman go to court to fight for the right to hit a four-year- old child'.

The case arose when the London Borough of Sutton refused to re-register Mrs Davis because she would not sign an undertaking not to smack. She is a former teacher, and had been caring for Luke Formann, then aged three, for two years. She and Luke's mother had agreed that young children occasionally require smacking, and that she could, if she thought it appropriate, smack Luke.

With the Children Act 1989 requiring a fresh registration, Sutton turned Mrs Davis down, relying on Department of Health guidance under the Act, which stated that corporal punishment, including smacking, slapping or shaking, 'should not' be used by child-minders.

Mrs Davis appealed to magistrates who found in her favour. Mr Justice Wilson ruled yesterday in the High Court that councils were entitled to adopt an 'inflexible' policy of refusing to register child-minders who do not undertake not to smack. Those affected could challenge it in a magistrates' court, which could decide on a case by case basis. In Mrs Davis's case, he said, she was evidently highly suitable in all other respects as a child- minder, wished to smack only to the extent the parent wished her so to do, and had been successfully minding a child whose parent wished her to have the facility to smack.

Charles Waddicor, Sutton's social services director, said the authority would not appeal, would register Mrs Davis and would review its policy. However, it was 'a worrying development that it will be possible for child- minders to use corporal punishment' and the council was 'disappointed' by the decision. The council's preference would be not to register her.

Mr Bowis said that the department 'laid down guidelines for local

authorities to use with discretion - and that discretion should be used sensibly'.

John Ransford, secretary of the Association of Directors of Social Services, said that was not good enough. Local authorities relied heavily on departmental guidance for large parts of social legislation. 'If we ignore guidance and something goes wrong, we get hammered for not using it. Yet when we do, this judgment says we can be challenged on it and be overturned in court proceedings. It puts serious question marks over the status of guidance which must be resolved.' The association would seek an urgent meeting with ministers.

The NSPCC said it was 'deeply shocked'. It had believed that Department of Health guidelines meant that, outside the family, 'physical punishment has no place in publicly supervised childcare'. 'Corporal punishment can never be an effective way of disciplining children,' it said.

Angry reaction, page 3

(Photograph omitted)

The making of monsters, page 22

Law Report, page 36