Laws that criminalise unlawful violence date back to 1861 and are used every day in criminal courts to support prosecutions.
Despite what might appear to be an obvious legal position, the question is often 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 explaining in more detail below.
Perhaps surprising to many is the fact that the UK is only one of two places in the European Union that permits this state of affairs (the other being the Czech Republic).
This week the devolved government in Wales launched a 12-week consultation, with proposals to outlaw all smacking of children.
The 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 move 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 changed. While physically punishing children was accepted as normal practice in previous generations, research shows parents today are increasingly using positive approaches which are proven to be more effective, while feeling less comfortable about using physical punishment. In 1998, for example, 88% of British adults agreed that “it is sometimes necessary to smack a naughty child” while in 2015 only 24% of parents in Wales supported this statement.
Despite this shift in attitude, at the moment there are no plans to change the law as it applies in England.
What does the law allow?
The law allows 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’ has its origins in Victorian times. The case that established the legally accepted definition was R v Hopley (1860).
In this case, a boy was beaten by a schoolmaster with the permission from the child’s father, which led to 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 - such as teachers - who were charged with the criminal offence of assault on children.
The use of corporal punishment was commonplace in schools until the 1980s. From 1986, however, the UK Parliament increasingly restricted the use of corporal punishment, prohibiting it in all state maintained schools in 1987 and in independent schools in 1999. Its use was ended in children’s homes in 2001, Local Authority foster care in 2002 and in childcare provision in 2007.
The question of whether the punishment is 'moderate and reasonable' will be for a court to decide on the facts of any individual case.
It is fair to say, however, that any 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 than parents find other mechanisms to deal with children who might at times be very challenging.
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