At the beginning of this judgment I reminded myself that S's welfare was my paramount consideration. So it is, and so it will remain. My decision is dictated by what I consider to be in his best interests having regard to the facts I have found to have been established, having regard to the risks to which I judge he may be exposed in the future and having regard to all the circumstances of the case including the counter-balancing of fundamental human rights claimed by the mother and claimed on behalf of the child. I shall need, therefore, to address some of these matters in more detail.
She claims, as do those who support her, to have "the right" to bring up S free from interference from her mother, S's grandmother, and free, moreover, from interference imposed by the Court. It is an understandable enough reaction. Any interference with the power which a parent possesses to bring up his or her child strikes at the atavistic instinct to nurture and protect one's young. Whether the parent has such a "right", strictly speaking, is open to some jurisprudential debate into which it would not be profitable for me to enter. A fundamental purpose of the Children Act was to deflect concentration from parental rights to parental responsibilities and to emphasise that we do not own or possess our children: parenthood's only purpose is to bring them up to the best of our ability. I need no persuading that the mother's primary submission that she, as mother, is better able by nurture and by nature to care for S than his grandmother, is a powerful one. It is a submission which carries with it the backing of a number of significant recent cases which began in the House of Lords in Re: K.D. [1988] 1 A.C. 806 and has culminated in Re: "W" (a Minor) (Residence Order) [1993] 2 FLR 625. There Balcombe L.J. said:-
"There have been a number of cases recently on (the proper approach of the Court) to which I think I ought to refer. The first is Re: "KD" (cited above.) That was a case where a young married mother of a Ward of Court had been stopped access on the basis that the child was to be adopted by the foster-parents and she appealed against this. One of the matters which the Court had to consider was the fundamental human rights of the mother as laid down by the European Convention of Human Rights. There are two passages from the speeches to which I refer. First, from the speech of Lord Templeman where he says, in the context of whether there was any inconsistency between the English rule about the welfare of the child being the first and paramount consideration and the European Convention:
"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation. In terms of the English Rule the Court decides whether and to what extent the welfare of the child requires that the child shall be protected against harm caused by the parent, including harm which would be caused by the resumption of parental care after separation has broken the parental tie. In terms of the Convention Rule the Court decides whether and to what extent the child's health or morals require protection from the parent and whether and to what extent The Family life of the parent and child has been supplanted by some other relationship which has become the essential life for the child."
I have to say that when that passage is quoted, it is usually the first few lines that are quoted and not the second part of the passage, and I think it is important to bear in mind the second part as well.
From the same case, the speech of Lord Oliver of Aylmerton where he says,:
"If the child's welfare dictates that there should be no access, then it is equally fruitless to ask whether that is because there is no right to access or because the right is overborne by considerations of the child's welfare. For my part, I think the President's analysis in Hereford and Worcester County Council -v- JAH [1985] F.L.R. 530, places the emphasis perhaps too much upon the necessity of finding a positive benefit to the child from parental access. As a general proposition, a natural parent has a claim to access to his or her child to which the Court will pay regard and it would not I think be inappropriate to describe such a claim as a "right". Equally, a normal assumption is, as Latey J. observed in M v M (Child Access) [1973] 2 ALL E.R. 81, that a child would benefit from continued contact with his natural parents. Both the "right" and the assumption will always be displaced if the interests of the child indicate otherwise."
Next in this line of cases is Re: "K" (a Minor) (Custody): [1990] 2 FLR 64, where the contest was between the uncle and aunt on the one hand, with whom the child had lived immediately after his mother had committed suicide, and the father on the other. Fox L.J. referred to the speeches of Lord Templeman and Lord Oliver in Re: K.D. and he, himself, set out the test in the following passage:
"The question was not where the child would get the better home. The question was: Was it demonstrated that the welfare of the child positively demanded the displacement of the parental right. The word "right" is not really accurate insofar as it might connote something in the nature of a property right which it is not but it will serve for present purposes. The "right" if there is one, is more that of the child."
I am not certain that Fox L.J. in his paraphrase of the speeches in Re: K.D. went rather further than he was entitled to do, and for my part I would prefer the approach in the same case OF Waite J. where he says this, after referring to Re: K.D.:
"The principle is that the Court in Wardship will not act in opposition to a natural parent unless judicially satisfied that the child's welfare requires that the parental rights should be suspended or superseded. The speeches in the House of Lords make it plain that the term "parental right" is not there used in any proprietary sense, but rather as describing the right of every child, as part of its general welfare, to have the ties of nature maintained wherever possible with the parents who gave it life."
A little later in referring to the question that the Judge in that case ought to have asked:-
"The question he ought of course to have been asking was: are there any compelling factors which require me to override the prima facie right of this child to upbringing by its surviving natural parents."
Finally in the sequence one comes to the case of Re: H (a Minor) (Custody: Interim Care and Control) (1991) 2 FLR 109 again in this Court. It is sufficient if I only refer to the Judgment of Lord Donaldson MR at p.112 where he says:
"... I am slightly apprehensive that Re: K (a Minor) (Custody) [1990] FLR 64 may be misconstrued as an authority. It was being used by (Counsel) as if it were authority for the proposition that fathers (or, as the case may be, mothers) have parental rights in the sense of proprietary rights. I think it is more important, if one is citing or relying on Re: K to look at the Judgment of Waite J. of which Fox L.J. would, no doubt, have been aware and with which he would undoubtedly have agreed, not only in the passage which Butler-Sloss L.J. has quoted, but also in the succeeding sentence which reads as follows ..." and he then quotes the passage which I have just mentioned. Lord Donaldson goes on: "So it is not a case of parental right opposed to the interests of the child, with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the child. It is the same test which is being applied, the welfare of the child, and all that Re: K is saying, as I understand it, is that of course there is a strong supposition that, other things being equal, it is in the interests of the child that it shall remain with its natural parents."
For my part I agree whole heartedly with what Lord Donaldson says there, and I hope that it may be possible that this divergence of views, if such it really is, can finally be stilled. I would repeat what Lord Donaldson says. It is the welfare of the child which is the test, but of course there is a strong supposition that, other things being equal, it is in the interests of the child that it shall remain with its natural parents, but that has to give way to the particular needs in particular situations."
Waite L.J. delivered a concurring Judgment in which he said:-
"I agree. The authorities which had been cited by Balcombe L.J. illustrate the difficulty of finding, within the infinite variety of circumstances in which the welfare of a child may fall to be applied as the paramount consideration, some principle which does procure justice to the element in the child's welfare represented by the advantage of maintaining the ties of nature with its own parents. I agree that the principle is best and more succinctly expressed by Lord Donaldson in Re: H (a Minor) (Interim Custody) to the general effect that the welfare of the child is indeed the test, but there is a strong supposition, other things being equal, that it is in the best interests of the child to be brought up by his natural parents."
I direct myself accordingly.
Cases involving Jehovah's Witnesses, the Plymouth Brethren and the Scientologists have been before the Court and the factual circumstances in each case have inevitably varied significantly. I can, however, obtain some help from that line of authority.
In Re: "T" (Minors) December 19th 1975, Scarman L.J., as he then was, said this:
"We live in a tolerant society. There is no reason at all why the mother should not espouse the beliefs and practices of Jehovah's Witnesses. There is nothing immoral or socially obnoxious in the belief and practices of the sect. There is a great risk because we are dealing with an unpopular sect, in overplaying the dangers to the welfare of these children inherent in the possibility that they may follow the mother and become Jehovah's Witnesses."
More recently the Court of Appeal had occasion to consider the Plymouth Brethren in Re: "R" (a Minor) (Residence: Religion) [1993] 2 FLR 163. Purchas L.J. said this:-
"The Judge's approach to the fellowship, their beliefs and rules is set out at the beginning of his judgment in these terms: "The beliefs of this group of Christians are in some respects relevant to this case, but I stress that I have judged this case under the normal principles which apply in these Courts to every case." I have no hesitation in saying that that is an impeccable approach to this problem. It is no part of the Court's function to comment on the tenets doctrines or rules of any particular section of society provided that these rules are legally and social acceptable. ... However, ... the impact of the tenets, doctrines and rules of a society upon a child's future welfare must be one of the relevant circumstances to be taken into account by the Court when applying the provisions of Section 1 of the Childrens Act 1989. The provisions of that section do not alter in their impact from one case to another and they are to be applied to the tests set out in accordance with the generally accepted standards of society, bearing in mind that the paramount objective is promoting the child's welfare, not only in the immediate, but also in the medium and long-term future during his or her minority. This is well established. We will refer to the case of Re: T (Minors) (Custody: Religious Upbringing) [1981] FLR 239 which among other matters held that:-
"It was not for the Court to pass any judgment on the beliefs of the parents where they are socially acceptable and consistent with a decent and respectable life; there was no reason why the mother should not espouse the beliefs and practices of Jehovah's Witnesses for there was nothing immoral or socially obnoxious about them."
Then another finding:-
"It was not necessarily wrong" (and I emphasis the word "necessarily") "or contrary to the welfare of children, that they should be brought up in a narrower sphere of life and subject to a stricter religious discipline than that enjoyed by most other people, nor that they be without parties at Christmas and on birthdays: in this case it was essential to appreciate that once the mother's teaching was accepted as reasonable, it had to be considered against the whole background of the case and not in itself so full of danger that it alone could justify making an Order which otherwise the Court would not make."
That authority merely supports the fact that it is against the normal standards of society that the provisions of the Act must be applied. A further reference to this approach is to be found in the judgments of this Court, in a different context admittedly to the present consideration, in the case of C v C (a Minor) (Custody: Appeal) [1991] 1 FLR 223 in the judgment of Balcombe L.J. where emphasis is made in the context of a lesbian relationship that it is the generally accepted standards that are to be applied when judging the welfare of the child".
That decision of Balcombe L.J. in "C v C" is instructive. He said this at page 230:-
"It is apparent that views will frequently differ as to what the welfare of the child requires in a particular case. The Judge is thus faced with having to make a decision without the benefit of any guidelines, save such as may be prescribed by decided cases. One thing is however clear: in making a decision on welfare the Judge should not be influenced by subjective considerations. To take an example: the issue may be whether the child is to be brought up in the faith of Religion A or in that of Religion B. The Judge may be a member of Religion A, and a firm believer in it tenets: nevertheless, he must try to ensure that his personal beliefs do not affect his judicial function in deciding where the child's welfare lies.
Nevertheless although the Judge may not allow his subjective views to affect his decision on what the child's welfare requires, he cannot abdicate responsibility merely because the issue is a sensitive one on which different views are held. What standards then should he apply if he is not to apply his own objective views?
In my judgment, he should start on the basis that the moral standards which are generally accepted in the society in which the Judge lives are more likely than not to promote his or her welfare. As society is now less homogeneous than it was a hundred or even fifty years ago, those standards may differ between different communities, and the Judge may in appropriate cases be invited to receive evidence as to the standards accepted in a particular community, but in default of such evidence and where, as here, the child does not come from a particular ethnic minority, the Judge is entitled, and indeed bound, to apply his or her own experience in determining what are the accepted standards."
There are, of course, objections to the test propounded in that way. If the Judge has to rely on "his or her own experience" to divine "the accepted standards" of society, he or she is, in the final analysis, deciding the matter without the benefit of any evidence to assist in the task. One might well ask what possible evidence could be led to assist? Are the standards to be set by the readers of Daily Telegraph, or the Sun or, having regard to their special interests in the Children of God, the Daily Mail? Is an opinion poll to be conducted? How would one frame a question or even a series of questions which would encapsulate even the main arguments, never mind the nuances of this case? At the end of the day it is a decision for the Court to make. In making it, I will not be governed by subjective considerations of personal preference but I am bound by my judicial oath to "do right to all manner of people after the laws and usages of this realm without fear or favour affection or ill will". There is nothing new about this. Lord Mansfield in R v Wilkes 4 Burr. 2839 defined discretion as follows:-
"Discretion, when applied to a Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular."
For that great English jurist, Sir Edward Coke, to exercise discretion was:-
"To discerne by the right line of law, and not by the crooked cord of private opinion."
I shall endeavour to follow them.
We live in a tolerant society. For centuries it was the Church and not the State which controlled the exercise of religious worship and expression of opinion on religious matters. The State recognised and obeyed the law of the Church as it was enforced in the Ecclesiastical Courts. The link between Church and State remained a close one after the reformation. Although at the time of the Reformation Settlement, the establishment of the Church of England led to the proscription of other denominations, Parliament has in successive centuries passed Acts which have, from time to time removed the disabilities against observance of other religions. For example the Toleration Act of 1689 removed many of the disabilities against Protestant non- conformists. Discriminatory laws against Roman Catholics were swept away in the Roman Catholic Relief Acts of 1791 and the Roman Catholic Emancipation Act of 1829 allowing Roman Catholics to sit in Parliament and to be eligible for public office. Perhaps the last vestige of disability was swept aside with the Lord Chancellor (Tenure Office in the Discharge of Ecclesiastical Functions) Act 1974 which for the avoidance of doubt declared that the office of Lord Chancellor is tenable by an adherent of the Roman Catholic faith. In 1846 the Religious Disabilities Act relieved Jews of their constitutional disabilities.
Blasphemy is some barometer of the changing attitudes to religious observance. No longer is it a blasphemous libel simply to asperse the truth of Christianity. In Regina -v- Ramsey and Foote (1883) 15 Cox CC 231, Lord Coleridge, LCJ directed the jury in his summing up that:-
"To asperse the truth of Christianity cannot per se be sufficient to sustain a criminal prosecution for blasphemy. And on the ground that in the sense understood by the judges in former times that Christianity is part of the "law of the land" to suppose so is in my judgment to forget that law grows. The principles of law remain, and it is the great advantage of the common law that its principles do remain; but then they have to be applied to the changing circumstances of the time. This may be called by some retrogression, but I should rather say it is progression - the progress of human opinion ... I now lay it down as law, that, if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the right of being guilty of blasphemy."
In Regina -v- Lemon (1979) AC 617 Lord Scarman observed:-
"In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt."
We claim to be a civilised society whose distinguishing hallmark is our long-sufferance of our neighbour's practices, however obnoxious they may strike us to be.
The United Kingdom is a contracting party to the European Convention of Human Rights, Article 9 of which provides that:-
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or beliefs and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship teaching practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
Among those other rights of freedoms are those in Article 8 which provides as follows:-
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, or for the prevention of disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 14 of the Convention provides:-
"The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." (I have added the emphasis)
These articles were considered by the European Court of Human Rights in Hoffmann -v- Austria [1994] 17 E.H.R.R. 293, a case concerning the Jehovah's Witnesses. The European Court, by a narrow majority of 5 to 4 held this:-
"In awarding parental rights - claimed by both parties - to the mother in preference to the father, the Innsbruck District Court and Regional Court had to deal with the question whether the applicant was fit to bear responsibility for the children's care and upbringing. In so doing they took account of the practical consequences of the religious convictions of the Jehovah's Witnesses, including their rejection of holidays such as Christmas and Easter which are customarily celebrated by the majority of the Austrian population, their opposition to the administration of blood transfusions, and in general their position as a social minority living by its own distinctive rules. The District Regional Courts took note of the applicant's statement to the effect that she was prepared to allow the children to celebrate holidays with their father, who had remained Roman Catholic, and to allow the administration of blood transfusions to the children if and when required by law; they also considered the psychological relationship existing between the children (who were very young at the time) and the applicant and her general suitability as a carer.
In assessing the interests of the children, the Supreme Court considered the possible effects on their social life of being associated with a particular religious minority and the hazards attaching to the applicant's total rejection of blood transfusions not only for herself but - in the absence of a Court Order- for her children as well; that is, possible negative effects of her membership of the religious community of Jehovah's Witnesses. It weighed them against the possibility that transferring the children to the care of their father might cause them psychological stress, which in its opinion had to be accepted in their own interests.
This Court does not deny that, depending on the circumstances of the case, the factors relied on by the Austrian Supreme Court in support of its decision may in themselves be capable of tipping the scales in favour of one parent rather than the other. However, the Supreme Court also introduced a new element, namely the Federal Act on the Religious Education of Children. This factor was clearly decisive of the Supreme Court.
The European Court therefore accepts that there has been a difference in treatment and that the difference was on the ground of religion; this conclusion is supported by the tone and phrasing of the Supreme Court's consideration regarding the practical consequences of the applicant's religion.
Such a difference in treatment is discriminatory in the absence of an "objective and reasonable justification" that is, if it is not justified by a "legitimate aim" and if there is no "reasonable relationship of proportionality between the means employed and the aim sought to be realised."
The aim pursued by the judgment of the Supreme Court was a legitimate one, namely the protection of the health and rights of the children; it must now be examined whether the second requirement was also satisfied.
In the present context reference may be made to Article 5 of Protocol number 7 ... although it was not prayed in aid in the present proceedings, it provides for the fundamental equality of spouses inter alia as regards parental rights and makes it clear that in cases of this nature the interests of the children are paramount.
Where the Austrian Supreme Court did not rely solely on the Federal Act on the Religious Education of Children it weighed the facts differently from the "Courts" below, whose reasoning was moreover supported by psychological expert opinion. Notwithstanding any possible arguments to the contrary, a distinction based centrally on a difference in religion alone is not acceptable.
The Court therefore cannot find that a reasonable relationship proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14."
I am an advocate for the principles expressed in the Convention and I see the force of the judgment of the European Court. The purpose of the Convention is to protect the rights of an individual against intrusion by the State: it is not a convention for the protection of children's rights. There is, of course, a balance to be struck between the parental rights of freedom of religion which is qualified by other rights one of which is the child's right to respect for his family life.
The rights of the child are agreed in the United Nations Convention on the Rights of the Child adopted by the general assembly of the United Nations on 20th November 1989 and ratified by the United Kingdom on 16th December 1991. It is, however not adopted into the law of the United Kingdom. It may well be that like the European Fundamental Human Rights Convention, it can be prayed in aid to resolve any ambiguity in the construction of our law but no ambiguity arises in the construction of the Children Act 1989 which this later Convention could resolve. Its recent ratification must, however, make it a valuable mine from which I may draw nuggets of public policy. Its preamble calls for consideration of the truism that:
"The child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity."
Among its provisions are the following to which I have added the emphasis to order to stress to the Plaintiff and to NT, and through her ,The Family, the importance the General Assembly of the United Nations attaches to these fundamental rights which ought to be the birthright of every child in a civilized society. The Family should not be able to fault them and can have no justification for not assuring this Court that they will be applied by The Family without qualification.
"Article 3: 1. In all actions concerning children ... the best interest of the child should be of primary consideration.
Article 5: States Parties shall respect the responsibilities rights and duties of parents or, where applicable, the members of the extended family ... to provide ... appropriate direction and guidance.
Article 12: States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
Article 13: The child shall have the right to freedom of expression; this right shall include the freedom to seek receive and impart information and ideas of all kind, regardless of frontiers, either orally, in writing or in print ...
Article 14: 1. States Parties shall respect the right of the child to freedom of thought conscience and religion.
2. States Parties shall respect the rights and duties of the parents ... to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
3. Freedom to manifest one's religion or beliefs maybe subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
Article 15: States Parties recognise the right of the child to freedom of association.
Article 16: 1. No Child will be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
Article 18: 1. Parents ... have the primary responsibility for the upbringing and development of the child.
Article 19: States Parties shall take all appropriate ... measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s) ... or any other person who has the care of the child.
Article 28: 1. States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall in particular:
(c) Make higher education accessible to all on the basis of capacity by every appropriate means.
Article 29: 1. States Parties agree that the education of the child shall be directed to:
(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential ...
(d) The preparation of the child for responsible life in a free society in the spirit of understanding, peace, tolerance equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.
2. No part of the present article or Article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
Article 30: In those states in which ... religious .. minorities .. exist, a child belonging to such a minority ... shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.
Article 34: States Parties undertake to protect children from all forms of sexual exploitation and sexual abuse ... in particular ... (a) the inducement or coercion of a child to engage in any unlawful sexual activity ... the exploitative use of children in pornographic performances and material.
Article 37: 1. States Parties shall ensure that (a) no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment ... (b) no child shall be deprived of his or her liberty unlawfully or arbitrarily ...
On the evidence presented to me, and as set out above, there has been a significant number of breaches of the provisions of this Convention applied to children in The Family. I am not satisfied that children are fully prepared by The Family to live an individual life in society nor are they brought up in the spirit of tolerance as set out in the preamble, I am not satisfied children enjoy the right to express their views freely in all matters affecting them. They do not enjoy the freedom to seek and receive ideas of all kinds. They do not have the right to freedom of thought or the freedom of association. Forsaking all is an interference with their Family. In many respects, therefore, The Family fall short of the standards set by this Convention.
Section 1 of the Children and Young Persons Act 1933 provides:-
"(1) If any person who has obtained the age of 16 years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats, ... or causes or procures him to be assaulted, ill-treated ... in a manner likely to cause him unnecessary suffering or injury to health ... that person should be guilty of an offence, and shall be liable - (a) on conviction on indictment ... to imprisonment for any term not exceeding 10 years.
(7) Nothing in this section shall be construed as affecting the right of any parent, teacher or other person having the lawful control or charge of a child or young person to administer punishment to him."
It is, therefore, a good defence that the alleged battery was merely the correcting of the child by its parents, provided that the correction be moderate in the manner, the instrument and the quantity of it.
It is not unlawful for a childminder who is registered with the local authority pursuant to Part X of the Children Act 1989, to smack a minded child with the consent of the natural parent: Sutton L.B.C v Davis [1994] Fam. 241. Following that decision, the Department of Health reviewed the guidance it issued to the local authorities to include the following:
"5. The Department recognises that there are differing views on use of smacking. Many parents when teaching their child right from wrong consider it an effective sanction. Punishment for the latter and praise for the former are part of a good family setting. It is for parents to decide whether to give a gentle smack as a quick and effective way of dealing with behaviour that has not responded to other powers of persuasion.
6. Childminders, whose relationship with the child is more detached than that of a parent, should not normally smack a child as a means of dealing with its behaviour. The use of smacking should be rare and then only as a last resort with the consent of the parents. Childminders will have special skills for looking after young children and can be encouraged to develop other strategies for helping children to understand the difference between acceptable and unacceptable behaviour.
7. When a childminder is prepared to use smacking as a sanction of last resort, this should be made clear to the parents at the outset. For the avoidance of doubt it is desirable for the parent's consent to be part of the written contract between the two parties about the childminding arrangements."
The position is quite different with private fostering arrangements. Under Section 66(1) of the Children Act 1989:
"A privately fostered child means a child who is under the age of 16 and who is cared for, and provided with accommodation by, someone other than a parent of his."
Section 66(2) provides that a child is not privately fostered if the person caring for and accommodating him does not intend to do so for any longer period than 28 days. It may well be that there are children within Family homes whose parents are away and who are, therefore, being privately fostered. Section 67 of the Act then imposes a duty on the local authority to satisfy themselves that the welfare of such children are being satisfactorily safeguarded. The Foster Placement (Children) Regulations 1991 require that the local authority do not place a child with a foster parent unless the foster parent enters into a written agreement with them covering the matters specified in Schedule II to the Regulations, paragraph 6 of which requires the foster parent to undertake "not to administer corporal punishment to any child placed with him."
It may be that some of The Family homes are "voluntary homes" within the meaning of Section 60 of the Children Act. Section 63 provides that no child shall be cared for and provided with accommodation in a Childrens home unless it is registered under Part VIII of the Act. A children's home means a home which provides or usually provides or is intended to provide care and accommodation wholly or mainly for more than 3 children at any one time but a child is not cared for and accommodated in a children's home when he is cared for and accommodated by a parent of his. It may be, therefore, that Family homes are caught by the provisions of the Children's Homes Regulations 1991, Regulation 8 of those regulations provides that the following measures shall not be used in a children's home:
(a) any form of corporal punishment;
(b) any deprivation of food or drink
(c) any restrictions on visits to or by any child or any restriction on or delay in communication by telephone or post with his parent, his relatives or friends (which would include grandmother)."
The relationship of teacher and pupil formerly carried with it the right of reasonable chastisement. This right has, however, been severely curtailed by Section 47 of the Education (No.2) Act 1986 which provides that the giving of corporal punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff by virtue of his position as such. Corporal punishment has therefore been abolished in all except private fee-paying schools. Even there the enlightened policy of the Act is invariably adopted.
It will be seen from this review of these various provisions that there has been a steady and insistent curbing of the right of the parent and of those in loco parentis to reasonable chastisement of a child.
The European Convention protecting Fundamental Human Rights provides by Article 3 that:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
In the case of Tyrer v United Kingdom [1979] 2 E.H.R.R.1, the European Court considered a sentence by a Juvenile Court on the Isle of Man to three strokes of the birch imposed for an assault occasioning actual bodily harm. The punishment was still available under Manx law but it had ceased to be a permissible sentence in England, Wales and Scotland in 1968. The Court held:
"The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence, that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authority of the State. Thus, although the applicant did not suffer any severe or long lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which is one of the main purposes of Article 3 to protect, namely a person's dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects."
The punishments meted out in Macau and the horsewhipping at Tewkesbury fall within that description if for the organs of State one understands the analogous teamworks within The Family.
In Costello - Roberts v United Kingdom [1994] 2 FCR 65, a boy at a private school accumulated 5 demerit marks and, having already received 3 warnings from the Headmaster, he was given 3 spanks on his bottom through his shorts with a rubber soled gym shoe. The European Court considered that the punishment was not degrading in breach of Article 3 because the humiliation or debasement involved did not attain the particular level of severity and exceed the usual element of humiliation inherent in any such punishment. It would follow from that case that the fundamental human rights of the children in this Country had probably not been invaded except in the case of S4 and MS. This observation does not in any sense detract from the criticism I have already levelled at The Family for the excessive beatings they have administered to many other children in this Country. I am in no doubt at all that most of those beatings were unlawful.
I have attempted by this excursus of the law to plant the signposts of public policy and to follow them, to identify the rights of the mother in order to balance them against the rights of the child and to look at this case through both ends of the telescope - at one end a private dispute between a grandmother and her daughter, but through the other end, a dispute which raises important matters affecting fundamental freedoms. I bear all of those matters in mind. The fact that there may be nearly 200 other children in the British Isles is not a material factor in this private dispute between a grandmother and her daughter over the grandchild but it is idle to pretend that others will not be affected by this jugdment. That serves only to confirm that this is a serious matter which demands my earnest deliberation, and, I hope, justifies the length and detail of the enquiry. My duty is to give paramount consideration to S's welfare having regard to all the circumstances of this case and in particular to the check-list factors set out in Section 1(3) of the Children Act 1989. First, a summary:
