Writ January New Grid

Issue No. 121 February 2001 THE RIT JOURNAL OF THEW LAW SOCIETY OF NORTHERN IRELAND President’s Report In the first of an occasional series requested to give a presentation at the President reports and reflects Stormont on the house buying process on some matters of topical interest and we are preparing a detailed report in and activity within the Society. response to the General Consumer Council Report on the house buying One of the most enjoyable aspects of the process. We are working closely with the Presidency is the opportunity to attend Lord Chancellor’s Advisory Committee Local Association functions throughout on Legal Aid Reform, and we are the Province, and, indeed, further afield. currently consulting within the profession In January I attended the justly popular on a wide basis on this vitally important Belfast Solicitors’ Association Dinner topic. In this new context it is therefore Dance and later that month I had a most all the more important that we should be enjoyable evening as guest of the Derry in a position to assess opinion throughout Association. I feel that there is great the profession on these matters from local benefit for our members in partaking in associations as well as from special active local associations. Apart from a interest groups within the profession. valuable social dimension, there are advantages for the profession, particularly Council is well aware of both the threat at a time of great change and challenge, and the opportunity afforded by current for solicitors in any given area to promote changes. It is vitally important that our themselves more effectively and to involvement in the conveyancing process impressed by the facilities which are now deliberate on matters of current concern. keeps up to date and relevant. We must made available to all of us. The staff is Again there is scope for organising local all avail ourselves of the opportunities highly skilled and approachable and they seminars, particularly in the context of afforded by computerisation within the would very much like to hear from any of compulsory continuing professional public sector, with particular reference to you in connection with work with a education (which has been adopted as a the Land Registry, Searches and Property European dimension. The take-up from policy by Council). Our Scottish Certificates. At the forthcoming Annual our members has been slow to date but colleagues advise us that having taken a Conference an introductory talk will be this is similar to the experience whenever similar step in Scotland, there has been a given on the revised General Conditions the Scottish Law Society first became strong revival of interest and activity of Sale which are designed to improve involved. Apparently our Scottish within local associations. certain aspects of practice. I have already colleagues, after a slow start, are now made reference to the changes in Legal greatly appreciating this facility. The advent of a local Assembly in Aid practice, which have already been Northern Ireland has already had effected in Great Britain. A strategy JOHN G. NEILL considerable impact on the activities of steering group from within the Council is the Council, with an evident increase of President currently studying this matter, as well as involvement by the Society in local and the linked area relating to claims for public affairs. We have already been personal injury compensation. Again, this consulted by departmental committees, topic will feature at our conference. We as Contents sometimes at short notice, on current a profession must respond to the very real legislation, and we have attended before challenge in this field presented by the News from Brussels . p7 and given evidence to a number of activities of specialist claims companies Don’t lose sight of your Client’s statutory committees on proposed and the insurance industry in general. measures, including the Ground Rents Instructions. p10 Order and the draft Financial I recently paid a visit to the Law Societies’ Conference Special . p13-17 Investigations (N.I.) Order. We have been Joint Brussels Office and was greatly February 2001 2 CHILDREN ARE UNBEATABLE! The Children’s Law Centre are members was flogged with a stick and skipping and degrading treatment because the law of The Children Are Unbeatable Alliance rope for over two hours and died as a (for which the government is which is lobbying for effective legal result of his injuries. The headmaster responsible) did not protect children in reform to ensure that children and young who inflicted the injuries was convicted this situation. The European Court of people are given the same protection of manslaughter. It was held that Human Rights stated that the application from assault as adults. In our view this physical punishment cannot be of the defence of reasonable chastisement means that legislative change will be reasonable where it is “ administered for does not provide adequate protection to necessary to protect children who are the gratification of passion or rage, or if children who are subjected to physical subjected to physical punishment. This it be immoderate or excessive in its punishment of this nature, which needs to be done in conjunction with the nature or degree, or if it be protracted amounted to inhuman and degrading promotion of positive, non-violent beyond the child’s powers of endurance, treatment under Article 3 ECHR. The discipline and education programmes or with an instrument unfitted for the Court considered that children and other about positive discipline. purpose and calculated to produce vulnerable individuals are entitled to danger to life or limb, in all such cases State protection, in the form of effective The Office Of Law Reform in N Ireland the punishment is excessive, the violence deterrents against such serious breaches is about to issue a consultation document is unlawful.” of physical integrity and that the law on the use of physical punishment on should be amended. children and we are seeking to extend This is cold comfort indeed to children the Northern Ireland membership of and young people who need to be This led to the consultation in England, Children Are Unbeatable in an attempt to protected by our law against physical Scotland and Wales about amending the positively influence the debate which punishment. In the 1990’s parents were law to give children better protection. will be going on over the next 12 months acquitted who had beaten their children The consultation process in N Ireland about the physical punishment of with riding crops, should be underway soon. The children in N Ireland. We would used belts to discipline their children in a consultation process was disappointing encourage solicitors representing way that caused severe bruising and in certain aspects in England, Scotland children to become involved in this used electrical flex and garden cane and Wales particularly with the wording debate and respond to the consultation against their children.1 of some of the questions asked. For document from a legal perspective. example, one of the questions asked in CHILDREN’S RIGHTS AS HUMAN the English consultation paper was THE CURRENT LAW IN N IRELAND RIGHTS whether physical punishment that causes, or is likely to cause injury to the Although the Children and Young Pursuant to Article 3 ECHR which is head (including damage to the brain, Persons Act 1968 created offences of now part of our domestic law (since Oct eyes and ears) should never3 be deemed assault, neglect, ill treatment and 2000) everyone has the right to reasonable. We would not wish to see abandonment, it continued to allow for protection from inhuman and degrading such an inhumane question repeated in the parental right to administer treatment or punishment. the consultation in N Ireland, as it surely punishment. is not a matter for debate whether such One of the acquittals referred to above treatment of a child could ever be led to a case being taken to the European The current law in N Ireland allows deemed reasonable. The consultation Court Of Human Rights in the case of A parents to use the defence of reasonable document in England was also v UK 1998.2 The facts of this case were chastisement if they are prosecuted for unnecessarily restrictive in terms of the that a nine-year-old boy was beaten assaulting their child ie punishment options for reform proposed and repeatedly with a garden cane by his which it is reasonable for a parent to withdrawing the defence of reasonable stepfather, causing severe bruising on the inflict. The burden of proof is on the chastisement or outlawing all forms of child’s thighs, injuries that were prosecution to establish beyond physical punishment of children were consistent with the use of considerable reasonable doubt that the punishment not put forward as options in the force. The stepfather was acquitted by a inflicted went beyond the limits of consultation. Again we would like to see jury which had received a direction from reasonable chastisement. these options included in the the judge that” it is a perfectly good consultation document published in this This defence has been developed defence that the alleged assault was jurisdiction. through the common law. Chief Justice merely the correcting of a child by his Cockburn, in the case R v Hopley in 1860 parent”. An application was made to the The position in Sweden is that there has first laid down the principle of European Court Of Human Rights on the been no increase at all in prosecutions for reasonable chastisement. In this case a grounds that the UK government had parental assaults on children since the young boy of 13 at a boarding school failed to protect the child from inhuman ban 20 years ago.

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