username

password

image of 4 Paper Buildings logoHind Court1 Garden CourtCoram ChambersDNA LegalGarden CourtHarcourt ChambersNYASsite by Zehuti

NSPCC responds to judge's remarks on ‘cultural context’ of physical chastisement

The NSPCC has responded to remarks made by Mrs Justice Pauffley in Re A (A child - Wardship - Fact finding - Domestic Violence) [2015] EWHC 1598 (Fam). In that case Pauffley J said that authorities need to make allowances for a "cultural context" when ruling on physical abuse cases. The comment was made following a four day fact-finding hearing in a case involving a man accused of assaulting his wife and son.

The NSPCC said:

"This comes as a great shock to us, as we feel there is no excuse for child abuse. Children need to be protected irrespective of cultural sensitivities. Different practices are no excuse for child abuse taking place in this country and the law doesn't make that distinction.

"Every child deserves the right to be safe and protected from physical abuse and the courts must reflect this."

In the case the court heard that the parents married in India in 2005 and travelled to England in 2006 on temporary visas, which later expired.  Their only child, A (a boy), was born in 2007.  In 2013, the mother travelled to India alone, but maintained that the father tricked her into departing by promising that he and A would follow within days.  The father's case was that he had tried to join her but was unable to obtain a passport for A.  A lived with the father in England for 18 months while the mother was in India.  The mother returned to England in 2014 and sought asylum.

After the mother returned to England, the parents agreed for the mother to spend time with A and there were a few visits, including an overnight.  Thereafter, there was an incident between the parents in A's presence which resulted in the mother calling the police and the father being arrested for common assault.  He was released on bail, initially with conditions that he not contact the mother or A.  The father issued proceedings, seeking for A to be returned to his care and for orders preventing the mother from taking A abroad.
The mother alleged that the father was physically abusive towards her from early in the marriage.  The father denied the allegations and maintained that the relationship had been happy until they started to argue in the latter years of the marriage. 

Pauffley J summarised the legal framework set out in PD12J as to the factors to take into account when determining whether to make contact orders in cases that involved domestic violence and noted the court must only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact.

Having considered the evidence from both parents and three other witnesses and assessed the medical and police evidence (including an ABE interview of A), Pauffley J concluded that the father was physically violent towards the mother from early in the marriage.  Further, the father sent the mother extremely abusive WhatsApp messages and the judge concluded that he had sent the messages to hurt, undermine and intimidate her.

In an ABE interview, A suggested that the father had hit him with a belt.  The father denied striking A with a belt, but accepted in his police interview that he had slapped or tapped A for discipline.  The judge concluded there was not "punitively harsh treatment of A of the kind that would merit the term physical abuse".

The judge continued:

"Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. In this instance, and on the basis of his ABE interview, A did not appear to have suffered more than sadness and transient pain from what was done to him."

Pauffley J said that before deciding whether it would be in A's best interests to seek to rebuild a relationship with his father, further consideration would be needed of the father's reaction to the judgment and his ability to acknowledge his failings so as to be able to work towards a wholly different interaction with the mother going forward.

A discussion concerning the judge's comments on BBC 1's Newsnight can be viewed here (the discussion begins at about 34 minutes).

For the judgment and summary by Ariel Ricci, from which this item is partly derived, please click here.

11/6/15