Laws criminalising unlawful violence have been in place since 1861 and are utilised in criminal courts every day to support prosecutions.
Despite what may appear to be a simple legal position, the question of whether it is permitted to’smack’ a youngster is frequently asked.
The short answer is that smacking a child is legal, albeit the scope of that rule is explained further below.
Many people may be surprised to learn that the United Kingdom is one of just two countries in the European Union that allows this situation to exist (the other being the Czech Republic).
The Welsh autonomous government launched a 12-week consultation this week with proposals to criminalise all child smacking.
According to the Minister of Children and Social Care,
“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 disciplining children was always considered normal, we now know that it is becoming less acceptable, and parents are becoming increasingly concerned.
We want parents in Wales to feel confidence in their ability to manage their children’s behaviour without resorting to physical punishment. If there is a risk of harm to a child, it is our responsibility as a government to intervene. Many years ago, legislation was implemented to prohibit corporal punishment in schools and daycare settings; now is the time to ensure that it is no longer tolerated anywhere.”
Last October, the children’s commissioners of Scotland, England, Wales, and Northern Ireland called for a ban on smacking children in Scotland, England, Wales, and Northern Ireland.
Parenting approaches have also changed people’s beliefs. While physically disciplining children was once considered normal, research suggests that today’s parents prefer to use positive tactics that have been demonstrated to be more effective, while being less comfortable with physical punishment. In 1998, for example, 88 percent of British adults felt that “smacking a misbehaving child is occasionally required,” whereas only 24% of parents in Wales agreed in 2015.
Despite this shift in mindset, there are no plans to amend the law in England at this time.
What does the law allow?
The law authorises an assault on a youngster as long as it is a “fair punishment.”
However, according to Section 58 of the Children Act of 2004, this defence does not apply to more serious counts of violence, such as assault causing actual bodily harm or higher.
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 child’s father’s agreement, resulting in the child’s death.
During the trial, Chief Justice Cockburn, the presiding judge, stated:
“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.”
In this instance, fair punishment was established in law as a defence for parents, carers, or other responsible adults – such as teachers – charged with the criminal offence of assault on minors.
Until the 1980s, corporal punishment was widely used in schools. However, beginning in 1986, the UK Parliament began to restrict the use of physical punishment, banning it in all state-run schools in 1987 and independent schools in 1999. In 2001, it was phased out of children’s homes, local authority foster care in 2002, and childcare in 2007.
The question of whether the sentence is ‘moderate and reasonable’ will be decided by the court based on the facts of each case.
Any punishment that causes more than a little or transient injury (leaves a mark or bruise, for example) is likely to fall outside of this defence. As a result, it’s critical that parents discover alternate ways to deal with children who can be difficult at times.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact our team of criminal defence specialists on: 01376 511819