Re A (A Child; Wardship; Fact : Finding : Domestic Violence  EWHC 1598 (Fam) – read judgment
This recent domestic violence case involving a child and the comments made by Mrs Justice Pauffley have been exciting the interest of both the media those agencies involved in child protection, such as the NSPCC.
The parents met in 2004 and were married in India in January 2005. They travelled to England in 2006 on six month visas. They became ‘over stayers’ when those visas expired and they decided not to return. They lived in a series of addresses with other families.
In June 2007 their only child, A, was born.
It was the mother’s case that after about three months the marriage became unhappy – a situation which continued until the final separation in 2013. The father, by contrast, maintained they were very happy until about 2011.
At all events, in January 2013 the mother left the marital home for a few weeks and went to stay with a friend in the same street. At about that time, divorce proceedings were commenced and there was an attempt at salvaging the marriage with the assistance of a counselling organisation. The mother maintains, but the father denies, that she moved out because he beat and kicked her out of the house. According to the fathers evidence, the mother returned to the family home in early March.
On 12 March 2013, a ticket was purchased for the mother to fly alone to India on 8 April.
The mother made a number of allegations of domestic violence against the father and that he had been abusive to her through a series of texts and WhatsApp messages. The judge was ‘quite certain that from early on in the marriage, as the mother claims, there was real unhappiness caused by the father’s actual violence’ and that the texts and other messages ‘reveal a man with absolutely no respect for the mother of his child’.
Proceedings in court
So far, so uncontroversial. It is the following passage when looking at allegation made by A against his father of physical assault that interest is aroused.
I do not believe there was punitively harsh treatment of A of the kind that would merit the term physical abuse. 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 for misbehaviour in a way which first excites the interest of child protection professionals. In this instance 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.
It is clear from the judgment that Pauffley J did not believe much of what the father said in evidence. She described being ‘troubled by the father’s ability to lie when the situation as he saw it, called for deceit’. But she accepted much of what both the mother and A said. Therefore the father’s assertions that he had simply ‘slapped’ or tapped’ A as opposed to A’s allegation that he had been hit with a belt must be placed in this context.
If it was indeed accepted by Pauffley J that A had been hit with a belt by his father on his back and his legs, that it hurt and it left marks I cannot see how it can be said this does not amount to ‘punitively harsh treatment’. I am puzzled by what is meant by
proper allowance must be made for what is almost certainly, a different cultural context.
Are we to take it from this that if a child is from a community where corporal punishment using a belt is acceptable to some but by no means all in the community, that we as a society should tolerate that treatment of that particular child in a way we would not if the child were from a different community or cultural heritage?
There also seems to be an implied criticism of child protection professionals where it is said
within many communities newly arrived, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals.
The implied criticism is of overreaction in face of a cultural norm. There are many cultural norms which when looked at objectively must be perceived as harmful. Female genital mutilation is a cultural norm in many of the newly arrived and even the more established immigrant communities in the UK yet we have taken (long overdue) steps to address it being practiced in the UK through the introduction of legislation. This comment which no doubt sought to introduce a cultural context into the physical abuse suffered by A carries with it the danger of providing an excuse for hitting and marking a child with a belt when this treatment should be not acceptable in any circumstances.
Instead we should be concentrating on what this has meant to A. According to the judge he did not appear to have suffered more than ‘sadness and transient pain’. I have to wonder whether this conclusion which immediately follows the comment about the actions and attitudes of ‘newly arrived communities’ derives from an assumption that for A this treatment was less harmful because this is what happens in his community. Even if this is the case why must it be assumed that for A even though the pain may indeed be transient, the emotional harm caused by being hit with a belt by your parent is any less keenly felt, that the fear of being hit again is any less acute and that the confusion caused to a child of this age of being harmed by a supposedly loving parent is any less damaging.
Pauffley J looks to A’s presentation when visited by the local authority where it was stated that A ‘was observed to be a happy and contented child as well as very comfortable with his father’. We in this profession all have experience of cases where a child presents as ‘happy and contented’ belying the opposite of what is actually going on in the home. Or, conversely A may well have been happy and contented at the time he was seen but he certainly was not when he had his ABE interview and this child described himself as ‘sad.. but I’m a little brave..I’m not scared of him…but normally I’m sad.”
Every child’s cultural heritage is important. It is part of what makes them who they are. But finally they are children and the way they experience the full gamut of human emotions including pain, fear, sadness, joy and love is invariably universal. When we start approaching physical assault through some sort of cultural prism we do A and children like him a disservice. One can be culturally sensitive whilst at the same time firmly keeping in mind that abuse and the effects of it knows no such sensitivity.
Jacqueline Roach specialises in public and private law children cases at 1 Crown Office Row Brighton