When PC laws smack of nonsense

This week, the issues surrounding the corporal punishment of children, and the pros and cons of the prenuptial agreement

By Jonathan Goldberg, June 25, 2009

Joy from Manchester writes:

My cleaning lady, who is originally from Angola, is a wonderful person and the single mother of a 10-year-old child. She often brings her daughter to my home, she is a caring and devoted mother and the child is an absolute credit to her.

Last week the school refused to release the girl to her mother at the end of the school day, and they were threatening to bring in the police and social services until I was able to intercede successfully with the headmistress. In gym class they had noticed a very small bruise (which I myself later saw) on the child’s bottom, which had come about in this way. The girl was naughty and had used and hidden her mum’s mobile phone. Her mum had smacked her once on the bottom with a wooden spoon when the girl lied about it.

The school’s attitude seems incredible to me. Is a loving parent no longer allowed to discipline a naughty child ?

Joy, in this country we now live in an age of political correctness which does seem incredible to many of us. Whereas the common law used to permit a parent the defence of using reasonable (meaning modest) force to chastise a child, the Children Act 2004 outlaws this defence if it causes “actual bodily harm” (let alone anything more serious) to the child. The definition in law of “actual bodily harm” has a low threshold, and it means no more than any hurt or injury which interferes with the health or comfort of the victim. In one reported case, even the forcible cutting off of hair was held sufficient, so I have little doubt that the small bruise which you saw would also qualify.

Your cleaning lady is fortunate that you persuaded the headmistress to show robust common sense on this occasion. Too often, the childcare professionals, whether teachers, doctors, nurses, the social services or the police, bend over backwards to avoid criticism by overreacting to any little incident. This is no doubt the price we all pay for the many reported cases where children have been appallingly abused.

The consequences here could easily have involved taking her child away for days while an army of eager professionals wrote reports on her mothering skills, and, conceivably, even a criminal prosecution.

Using the wooden spoon was certainly not a good idea. Please explain to her that a combination of guilt, shouting and bribery has served Jewish mothers well over the centuries in bringing up their kids, whatever they may do in Angola.

In my opinion, nothing else today is safe.

Sam from Totteridge, north London, writes:

I am a widower in my early seventies, and I have had the good fortune to meet a nice lady who is slightly younger than myself and who is also in a comfortable way financially. We had planned to marry, but we are now sensing an anxiety (fairly good-natured so far) from our respective children, in terms of their future inheritances. This is starting to put us off the idea of remarriage altogether. Is there some fair way of protecting everyone’s interests here?

Sam, it sounds as though you are both ideal candidates for a pre-nuptial agreement. In essence it works like this: you and your wife-to-be enter into a written contract whereby you each make a full declaration of the assets you bring in to the marriage, and agree what will become of them when the first spouse dies (or indeed in the unwelcome event of divorce).

You might, for instance, agree that each side’s assets are to remain his or her sole property, and to pass on death to his/her estate and own children.

Alternatively, and sensibly, you might agree that the surviving spouse shall inherit a life interest in all the property until death, but thereafter what belonged to the first spouse shall revert to his/her own children. That means, to take imaginary examples, that the survivor would not need to move from the matrimonial home, or sell the Rolls or the flat in Spain.

It is vital to remember that marriage automatically revokes all previous wills as a matter of law. It follows that the new spouse would inherit, and thus the children would be entitled to their concern, unless you first made appropriate arrangements. I must add that in the UK, unlike in America, pre-nuptial agreements are technically only persuasive, and are theoretically not binding on the courts. In practice, however, they are enforced in all save the most exceptional circumstances. Examples might be serious and unforeseen ill health, or business failure, say, by one spouse, when the court would be likely to order some provision against the other regardless of what “the pre-nup” says.

So my advice to you both is to enjoy yourselves, protect the kids, but jolly well make them wait!

The above is not formal legal advice and is strictly without liability. Readers should consult a lawyer on any matter concerning them. All questions will be treated anonymously and all names changed.

Jonathan Goldberg QC is a leading lawyer practising at Ely Place Chambers in London

Questions? Please email qc@thejc.com

Last updated: 1:03pm, June 25 2009