Leading Article: Children's rights and heavy-handed remedies

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The Independent Online
It's an everyday story from family life. Your child, having been told not to cycle anywhere near the main road, disappears. You look outside, see she is not there, get anxious. A thousand malign scenarios form in your mind, inflamed by panicky press reporting of recent incidents. You scout. You quiz neighbours. You search. There she is, way outside the curtilage of security, oblivious to the traffic and the human hazards you count as you run towards her. Shaking, you grab her. But suddenly ire swamps relief. You raise your arm and ... you commit an assault, pitting an adult's weight and size against the small, soft limbs of a child. Is that really a private act, one of the thousand intimacies permitted by consanguinity, or is it a trespass, an infringement of the right of that child as a human person to care and physical integrity?

That phrase, "a child's right", is like a red rag to the bulls of social order and traditional family structure. Their horns are out as, last week, it was reported a father had been bound over by the courts after having hit his son; yesterday a boy plaintiff laid before the European Commission on Human Rights a suit against the British government for failing to protect him against a beating by his stepfather. (The Commission has agreed to pass the suit to the European Court of Human Rights. This body - Europhobes usually conveniently forget this - has nothing to do with the European Union. It has no power, only influence, and that only as long as the United Kingdom continues to uphold the treaties establishing the Council of Europe, the court's parent.)

Under British law children already possess a variety of statutory protections. The state intervenes extensively already between adult and child. Philosophically, the Children Act 1989 pushed the idea of children's rights a good deal further. This curious piece of Thatcherite legislation was intended both to strengthen family bonds and to give children a more secure place in care and divorce proceedings. Effectively the Act did expand the ambit of the state, since who else but the courts - or social workers - can actually make children's rights operational? Police officers and magistrates are now much more attuned to complaints brought by children themselves, partly because of the changed legal climate, but partly because of the zeitgeist. The very individualism on which successive Conservative victories were floated embraces children, too.

The spirit of the age is also confused. The same child who has of course to be given a choice at school lunch must now be tested in the classroom according to the most rigorous and objective schedules. The same child encouraged to discriminate between brands of cola or trainers is expressly forbidden choice when it comes to strangers on the street, or play on the beach.

Two principles contend. One is the need to respect and sustain the special nature of the parent-child relationship. The other is a collective interest in the well-being of the generation to come, which marries with a general respect for the rights of individuals and, by extension, the rights of children as half-formed individuals. The question posed by Child Z's application to the European Court is how far the latter intrudes into the former. When should it become the business of the state to hold (or stay) a parent's hand?

Most parents would answer intuitively that they know the difference between a slap and a punch, between a blow that hurts a child's pride and a blow that leaves a bruise. And what they know of their own children, they can judge of other people's children. Parents can be relied upon to blow the whistle on other parents, if they hear the child next door whimpering in pain and fear, if they see the bruises, if they smell the neglect. Leave it - it might be argued - to civil society. During the 20th century the use of corporal punishment has diminished, in the home as at school. Changing sensibilities are a better way of ensuring the well-being of children than heavy-handed social workers and magistrates.

But what, it might be countered, if civil society is apathetic; what if the way we live now precludes the supervision of other people's children? The physical and financial circumstances of modern life tell against the survival of those autonomous processes by which we are our neighbours' children's best friends and protectors. Enter the social services department or the woman police officer from the family division at the local nick: they are bidden to step in where we no longer have much interest in treading. There is a moral hazard here. The more the state intervenes, the less space and motivation for "society" to take care of itself.

In a perfect world there would be no gap between our intellectual convictions and our system of laws, between our principles and our behaviour. Our principles point towards treating children with the same respect for their autonomy as shapes our relationship with fellow adults. But the practice of child-rearing has to have space for chastisement - and that old word often fits the act. Gradually the practice and the principle are converging, part of a civilising process which, among other things, has seen the public and private conduct of men and women towards one another improve over the years. A key word is "gradually". Far better for changes in the law to attend the movement of sensibility in society than to have courts bludgeon behavioural change. It will take many months, perhaps years, before the European Court adjudicates. It perhaps should take many more months, if not years, before British law moves to anything as drastic as a complete proscription of physical punishment of children by their parents.

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