Referring to a recent case in which a childminder had caused 'appalling brain damage' by violently shaking two children in her care, James Munby QC said an absolute ban on corporal punishment could help to prevent physical abuse of children.
Councils risked being sued for damages if minders whom they registered inflicted injury on their charges, said Mr Munby, appearing for the London borough of Sutton in a 'right to smack' test case.
Last year, Anne Davis, 34, a childminder from south-west London, won the legal right to use corporal punishment on children, even though it was contrary to Sutton's rules governing registered childminders. In line with Department of Health guidelines, the council prohibits physical punishments like smacking, slapping or shaking.
Yesterday, Mr Munby asked Mr Justice Wilson to overturn what he described as the 'fatally flawed' decision by magistrates at Sutton Family Proceedings Court, to order the local authority to register Mrs Davis, a former teacher, as a childminder. He said: 'The merit of an absolute prohibition on physical chastisement is that it is an absolute line of prevention . . . you do not have the risk that what starts out as a reasonable chastisement ends up as something else.'
The issue has divided parents and childminders, and yesterday's appeal by the council is being supported by the National Childminding Association (NMCA) and the pressure group End Physical Punishment of Children (ENOCH). Gill Haynes, NMCA's director, said: 'We believe that physical punishment of young children is bad childcare practice.'
Mr Munby argued that the magistrates had unlawfully substituted their discretion for that of the council, even though it complied with government guidelines.
James Holman QC, for Mrs Davis, a mother of three, said that she first registered as a child minder in 1989 and cared for a child to the satisfaction of the mother until she was required to re-register when the Children Act came into force in 1992. Mr Holman argued that a willingness to smack, with the consent of the parents, did not render her unfit to look after young children.
The hearing continues today.Reuse content