Assessment of domestic violence should not be culture sensitive – Jacqueline Roach
13 June 2015
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
Something that slipped past me on my reading of the case was that the parents arrived in England in 2006 and the incident of concern occurred in 2013, thus making the ‘newly arrived’ portion of the offending paragraph 67 even less comprehensible or justifiable.
These parents were not ‘newly arrived’, they’d been here for seven years and even if the paragraph was purporting to perhaps discuss parts of the world where immigration into the UK is a relatively new phenomenom, that’s palpably not the case with India. People from India have been coming to the UK to live for a very, very long time. Notably from 1948 (but actually a lot longer than that)
I honestly cannot see the purpose of ‘newly arrived’ in that paragraph or how it relates to the facts of this case.
[David, you might be interested in the President of the Family Division’s case in which he spent a long time thinking about whether there’s a difference between male circumcision and female circumcision – you may not ultimately agree with his conclusion, but it is clear that he gave it considerable thought http://www.bailii.org/ew/cases/EWFC/HCJ/2015/3.html paras 54-73 are the key ones]
This was posted on the FB feed first. Not many people seem to read that, it seems:
I rather suspect that the author did not grow up in 1950s England, where the caning, slapping, slippering, belting, bits of broken deskliding, T-squaring, or whatever came to handing, of errant schoolkids, was so much a part of the culture that it was thought, even by the victims, as being amusing. There was even a TV series called ‘Whacko’, and a week seldom passed without a ‘Yaroo!’ from Billy Bunter.
For the most part, I’m sure that no cruelty was intended, and the kids knew what the punishment for getting out of line was, and didn’t respect the teachers any less because of it. If it had been done unfairly, that would have been a different matter, but mostly, we did deserve it, and knew we did, and it had no lasting effect on us.
And, in a society that didn’t think anything of it–or even thought it was amusing–we weren’t made to feel like victims or hold any grudges. Kids could tell the difference–like ‘A’ here, apparently, can–between deserved correctional punishment, and malice. The latter certainly did have bad effects, but on other occasions, a similar beating, without malice, would all be part of the game.
It is malicious and excessive punishment that scars people, and in many ways, a tongue lashing could be much worse than an actual beating.
The culture has changed now, so that shame and victimhood is attached to anyone so treated, and it might, in many cases, prove harmful: but it’s society that makes the child feel bad about punishments that would have been forgotten within minutes in earlier times.
Obviously, I don’t know anything about this case, but, certainly, experience would support the fact that what is psychologically damaging in one culture can be trivial in another.
We can’t turn the clock back to the days of Jimmy Edwards and Bunter in the UK, but let us not be too hasty in criminalising people who may be from cultures with different norms.
[Incidentally, I watched some ‘Bunter’ on youtube the other day, and was quite surprised to find that the scary Mr Quelch, was actually a bit of an old softie. smile emoticon ]
I know I won’t be changing any minds in writing this, as the arguments have all been thrashed to death themselves over several hundred years, but I think there is a real possibility that this boy ‘A’ will have been damaged by being made to feel a victim with an evil man for a father, whereas, without this fuss he might have forgotten all about it by now.
It is interesting that the safe counter-example of culturally-based abuse – FGM – is given here and in other media articles. And I have no doubt that it is indeed abuse of a most obscene kind. However, we seem to accept circumcision of males by races and cultures – I for one cannot see how this is not regarded as genital mutilation. Perhaps someone reading this could enlighten me – I might then be convinced that allowances are indeed not made for other cultural reasons
Child genital abuse – or any other kind of physical assault – is completely unacceptable, regardless of the beliefs of the genetic or other parents.
The behaviour of the father in this case was uncivilised and barbaric, and takes us all back to a much harsher and more cruel era.
I also think the judge should be re-trained or dismissed.
Attempts to roll back the clock in search of so-called “conservative” values must be resisted.
Circumcision for the male of the species has as its starting point hygiene. This is not the case with female circumcision which is about control of one human being by another.
Thank you! I abhor FGM, but I equally abhor the mutilation of babies and older children’s penises. Of course, if it is medically necessary, then it needs to be done. But in most cases it occurs due to religious or cultural beliefs or teachings. The foreskin serves several purposes, and I personally am of the belief that we should respect our bodies as they are true works of art!, miracles of nature! If its not broken, don’t try to fix it! Leave it to that child to make a decision as an informed adult as to whether they would like to keep or slice off a sensitive, functional part of their penis!. There has been a well publicised story recently of a mother who “abducted” her son and went on the run after losing a court battle where she was trying to prevent her son being circumcised against her wishes. I thought it tragic that a mother was not allowed to have the final say on a child she had carried and given birth to. I haven’t been able to follow their story lately, but I believe she has either returned or been found & that the procedure will be going ahead (if it hasn’t already!). Hundreds of thousands of Americans began fundraising to support and assist this woman in hiding and therefore preventing her son from being forcibly circumcised…which just goes to show that a growing number of people are standing up together to show their distaste at children of both sexes being unnecessarily mutilated in the most barbaric of rituals. I certainly would never entertain the idea of my children of either sex being subjected to such an ordeal. A daughter would never need circumcising as there is never a medical need to circumcise a female. Any son of mine would only ever be circumcised if there was a genuine medical reason which made it impossible to avoid – and I would explore every other possible cure or treatment before resorting to surgery.
Actually finally, there is One Law For All regardless. Anything else brings English Law into disrepute. The statue of justice standing above the court entrance is blind.
A special margin of appreciation in applying the law to be now expressed by the term ‘culture sensitive’ impresses me as a notably subtle and notably dishonest way of talking about discrimination. And, incidentally, about cowardice in applying our laws.
I have the duty and honour of serving on a municipal commission on discrimination in a French city. The incidence of wrong-doing (per the penal code) among certain sub-populations here, sub-populations not difficult to identify on cultural parameters, significantly exceeds the mean for the whole population. So when our public transport controllers enter a vehicle, an exercise in ‘cultural sensitivity’ should tell them whose tickets to check? And in competitions for public service jobs that demand self-control at all times, resistance to temptations, a ‘culturally sensitive’ number should now be weighted in among applicants’ qualifications?
I too found the judges comments incredible. The father of the 8-year old child had lived here for 9 years at the time of the assault. Whatever cultural context is being claimed, he cannot have been unaware that the standards of treatment of children in this country are not the same as the standards he might have been used to back in India. As such, he must also have been aware that cruel treatmnent of children in the UK is unlawful. The one person who appears to have lost sight of this very obvious fact is the judge. I would expect that some sort of judicial review of her decision will be held very shortly and the father re-tried and punished appropriately.
Multiculturalism is not a licence for violent people to behave any way they like in our country.
Ignorance of the law is no excuse – as everyone but the judge appears to appreciate.
We – correctly – accept punishment of our nationals when they are abroad.
The same principal applies in reverse.
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