Is it Lawful to Hit a Child?

Laws that criminalise unlawful violence date back to 1861 and are applied on a daily basis in criminal courts to support prosecutions.

Despite what might seem to be an obvious legal position, the question is frequently asked as to whether, despite those laws, it is permissible to ‘smack’ a child.

The simple answer is that it is lawful to chastise a child by smacking, although the extent of that provision needs more detailed explanation below.

Perhaps what many may find surprising is that the UK and the Czech Republic are the only two countries in the European Union that permit this state of affairs.

This week the Welsh Government launched a 12-week consultation, with proposals to ban all smacking of children.

The Welsh minister for children and social care said:

“Our knowledge of what children need to grow and thrive has developed considerably over the last 20 years. We now know that physical punishment can have negative long-term impacts on a child’s life chances and we also know it is an ineffective punishment.

While physically punishing children was accepted as normal practice in previous generations, we know that it is increasingly being seen as less acceptable and parents feel less comfortable.

We want parents in Wales to be confident in managing their children’s behaviour without feeling they must resort to physical punishment. If there is any potential risk of harm to a child, then it is our obligation as a government to take action. Legislation was introduced many years ago to stop physical punishment in schools and childcare settings – now is the time to ensure it is no longer acceptable anywhere.”

The steps taken in Wales follows similar developments in Scotland last October, which resulted in the children’s commissioners of Scotland, England, Wales and Northern Ireland calling for a ban on smacking children.

Attitudes to parenting practices have also evolved. While physically punishing children was accepted as the norm by past generations, research shows parents today are increasingly adopting positive approaches which are proven to be more effective, while feeling less comfortable about using physical punishment. In 1998, for example, nearly 90% of British adults agreed that “it is sometimes necessary to smack a naughty child” while in 2015 just under 25% of parents in Wales supported this statement.

Despite this shift in attitude, there are currently no plans to change the law as it applies in England.

What does the law allow?

The law permits an assault on a child provided that it constitutes ‘reasonable punishment’.

Section 58 Children Act 2004 states however that this defence cannot apply to the more serious charges of violence such as assault occasioning actual bodily harm, or above.

What is ‘reasonable punishment’?

The concept of ‘reasonable punishment’ originates from Victorian times. The case that established the legally accepted definition of ‘reasonable punishment’ was R v Hopley (1860).

In this case, a school boy was beaten by a schoolmaster with the permission of the child’s father, which resulted in the death of the child.

During the trial, the presiding judge, Chief Justice Cockburn, stated that:

“A parent or a schoolmaster, who for this purpose represents the parent and has the parental authority delegated to him, may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.”

This case established in law ‘reasonable punishment’ as a defence for those parents, carers or other responsible adults who have had parental responsibility delegated to them- such as teachers – who were charged with the criminal offence of assault on children.

Corporal punishment was routinely used in schools until the 1980s. From 1986, however, the UK Parliament progressively restricted the use of corporal punishment, prohibiting its use in all state-maintained schools in 1987, followed by outlawing its use in independent schools in 1999. Its use was ceased in children’s homes in 2001, then a year later Local Authority foster care followed suit and in 2007, so did childcare provision.

The question of whether the punishment is considered ‘moderate and reasonable’ will be for a court to decide based on the facts of each individual case.

It is fair to say, however, that any physical punishment that results in more than transient or trifling injury (leaves a mark or bruise for example), is likely to fall outside of this defence. It is therefore important that parents find other mechanisms to deal with children who might at times be very challenging.

How We Can Assist

Contact Jared McNally on j.mcnally@cj-law.co.uk concerning any criminal law enquiry, our team of expert lawyers will be able to guide you through any criminal allegation, working with you to achieve the best possible outcome