Page last updated at 14:31 GMT, Friday, 20 February 2009

Commissioner loses smack appeal

Actors simulate smacking
The judge said force was not always unlawful

NI Children's Commissioner Patricia Lewsley has lost an appeal against the law which allows parents to use smacking as chastisement.

Judges ruled the challenge must fail because she cannot be classed as a victim under the Human Rights Act.

Her office must also foot the bill of taking the case to the Court of Appeal.

She was seeking to overturn a finding that the Secretary of State did not act illegally by bringing the law in NI into line with England and Wales.

Her lawyers argued that a defence based on the right of parental correction or punishment is incompatible with children's rights under the European Convention on Human Rights.

They claimed parental corporal punishment breached the dignity and well-being of children, that it is ineffective and a counterproductive means of discipline.

It was also submitted that it sends out the wrong message to parents and that the law lacked the clarity and transparency.

During the case it was suggested smacking of children is a deterrent similar to electric fences being used to keep animals in a field.


Dismissing the appeal Lord Justice Girvan ruled that the High Court judge who rejected Ms Lewsley's original judicial review application had reached the right verdict.

He also pointed out that the use or threat of force is not always unlawful.

"In particular, it may be justified on the basis of actual or implied consent, self-defence, crime prevention or crowd control and on the basis that it involved the lawful punishment of a child," he said.

"It is for the prosecution to prove that a parent was not lawfully correcting his child when the issue arises."

Following the original case no order for costs was made against the Children's Commissioner because the case involved legal issues of general public importance.

But Lord Chief Justice Sir Brian Kerr directed the body to pay for the appeal after declaring all of the arguments had already been considered in the lower court.

Ms Lewsley later expressed disappointment at the verdict, but stressed it was important that she brought the case.

"My team and I will be examining the detail of today's judgment, as there are many issues now to consider," she said.

"We want the message to be clear that we believe hitting children is wrong.

"It has been already banned in more than 50 countries worldwide, all the children's commissioners in the UK agree, and the United Nations Committee on the Rights of the Child has said it should be banned."

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