Corpun file 14717

Daily Telegraph, London, 11 December 2004

Harman's cruelty case setback

By Joshua Rozenberg
Legal Editor

Parents who go beyond "reasonable chastisement" in punishing children do not have to go to prison, the Court of Appeal said yesterday.

The ruling was a setback for Harriet Harman, the Solicitor General, whose counsel had told the appeal judges that anyone who punished a child more severely than the law permitted should normally receive an immediate custodial sentence.

Lord Justice David Keene

"That would make life quite difficult for parents," remarked Lord Justice Keene, the presiding judge. The court then dismissed a claim by Miss Harman, one of the Government's law officers, that a non-custodial sentence passed in April on a 41-year-old man who admitted subjecting three of his children to "humiliating, degrading and cruel" punishment was unduly lenient.

Lord Justice Keene pointed out that, as the law stood, a parent could administer "reasonable corporal punishment" to a child.

"If chastisement goes beyond what is reasonable, it will be a criminal offence, but it doesn't automatically follow that a custodial sentence is always called for. That will depend on the circumstances of the case," he added.

The father, who cannot be identified, was said to have had a "distorted" view of how to discipline children as a result of his own traumatic experiences of cruel treatment as a child.

He was making good progress towards improving his parenting skills and resuming regular contact with his children, none of whom had suffered physical or lasting psychological injury, his counsel said.

The man had admitted cruelty over a period of a year to three of his children, a girl of 13 and two boys, 10 and eight, including: dipping the boys in cold baths for up to 20 seconds; smacking the children's clothed bottoms, and the soles of one boy's feet, with a slipper; lightly caning their backsides with bamboo; putting mustard on the youngest child's tongue for foul language; and whipping the children with a wet tea towel during "horseplay".

Jonathan Laidlaw, for Miss Harman, said she was concerned that a non-custodial sentence did nothing to protect the victim, deter others or maintain public confidence in the criminal justice system.

But Peter Dahlsen, for the father, said there had been no malice. He had acted out of a misguided desire to hand out what he thought was appropriate punishment.

Giving judgment, Lord Justice Keene said prison would be appropriate when there was evidence of injury. But the facts of cruelty cases varied enormously.

Motive was important - "something done by a parent who goes over the top seems to this court somewhat less serious than something done to inflict pain and out of malice".

A two-year community rehabilitation order was within the range of sentences properly open to a judge, the court concluded.