Can parents smack their children?

The report, Review of Section 58 of the Children Act 2004, brings together findings on the effects of the legislation which limited the availability of the ‘reasonable punishment’ defence in cases involving alleged assaults by parents on their children. Consultations were held with parents, children and young people and other groups including, children’s charities, police and the crown prosecution service.

One of the major findings in this report is the lack of understanding about the law on physical punishment and a lack of awareness across professional groups about the scope and application of the law.

Background to the review
Up till the introduction of section 58 of the Children Act 2004, it was possible for a parent to argue that their physical punishment of their child was ‘reasonable punishment’ and should not be seen as constituting a criminal offence.

The defence of reasonable punishment dates from 1860, when its characteristics were spelled out in judicial remarks (the phrase did not appear in statute). Chief justice Cockburn stated: ‘By the law of England, a parent... 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.’ It was left to the courts or juries to decide what is ‘moderate and reasonable’ in the view of an ordinary person in any particular case, and this will therefore vary over time as people’s views alter.

Following the enactment of section 58, the defence of reasonable punishment cannot be used unless the defendant is charged only with common assault, the victim is a child and the defendant is the parent of the child or a person acting in loco parentis. In effect this means that where an injury to a child is more than a temporary reddening of the skin the ‘reasonable punishment’ defence cannot be used.

This piece of legislation suggests then that physical chastisement is unreasonable where the child sustains injury that is more than a reddening of the skin. This law does not, however, rule out physical chastisement by parents.

During the introduction of the Children Act the government agreed that the effect of the introduction of section 58 would be reviewed and that parents’ views on smacking children would be sought.

The review gathered evidence in four ways:

• A public consultation document published on 15 June 2007, asking for evidence from practitioners and others about how section 58 has worked in practic.
• A survey of a statistically representative sample of parents, seeking views about methods used by parents to manage behaviour; circumstances in which smacking may have been used; incidence of smacking; perceived effectiveness of smacking and its acceptability; and whether the law should allow smacking.
• Research into the views of children and young people, conducted through the Central Office for Information. Sixty-four children aged four to 16 were interviewed in depth about their views on discipline and physical punishment.
• Additional evidence, comprising of field visits conducted by DCSF officials to discuss the implications of section 58 in detail with the members of local police forces, social services, and the Crown Prosecution Service.

The public consultation
This consultation asked questions specific to the operation of section 58. However, the majority of respondents offered their principled opinions about physical punishment, perhaps this not so surprising given that out of the 1,405 responses, 831 respondents were parents.

Key messages from respondents who did address the operation of section 58 included:

• A belief that section 58 had not improved legal protection for children and a preference for the introduction of a total ban on smacking.
• A belief that section 58 had not brought about change in practice of those working with children and their parents in considering incidents of alleged abuse.
• A belief that the legal position on physical punishment is not well understood by parents and agencies struggle to advise parents because while professionals would advise against any form of physical punishment, section 58 does not act as a total ban of smacking.

In their response, the NSPCC, Save the Children, 11 Million, the Children’s Rights Alliance for England, and others as part of the Children are Unbeatable! Alliance, called for all forms of smacking to be banned. These organisations argued that physical punishment is never acceptable; that all physical punishment needs to be banned in order for the UK to meet its international obligations; and that confusion about what the law says makes it difficult for professionals to work with parents.

The Royal College of Nursing and the Royal College of Paediatrics and Child Health (RCPCH) both responded that physical punishment of children should be banned.

Parental survey
1,822 parents across England and Wales took part in the survey.

Findings:

• Smacking is one of the less common methods used by parents to manage their children’s behaviour.
• Parents’ attitudes towards smacking have shifted over time – smacking is less likely to be used by parents whose children are currently under 18 than those whose children are now adults, and younger parents tend to hold a more negative view of smacking.
• About half of parents think it is sometimes necessary to smack a naughty child, and many say they have smacked at least one of their children.
• The majority of parents think the law should allow parents to smack their children.

Interestingly, a number of parents talked about using the ‘naughty step’ as an alternative to smacking. The ‘naughty step’ was highlighted on television in programmes such as Super Nanny. This suggests that television provides a useful tool in helping parents change their way of coping with difficult behaviour. A previous study by the DOH in 1998 found that 88% of respondents agreed it is sometimes necessary to smack naughty children.

In the parental survey conducted for this review, 52% of respondents agree it is sometimes necessary to smack a naughty child, suggesting a change in attitude over time. Fifty-nine per cent of parents said that the law should allow parents to smack their children, and 67% disagreed that there should be a complete ban on smacking their children. However, only 24% of parents said they use or have used smacking.

These statistics are difficult to understand it is as though while attitudes are changing, with fewer parents resorting to smacking, there is a reluctance to let this form of punishment go. The survey does show that older parents are less likely to support an all out ban.

Children and young people survey
Sixty-four children aged four- to 16 took part in the children and young people survey conducted through the Central Office of Information.

Main findings:

• About two-thirds of children reported having been smacked at some point, with children being smacked more often when they are younger. (This might suggest a bit of minimisation on the part of parents in the parental survey, as only 24% said they used smacking!)
• Many children accepted that discipline and punishment were an important and necessary part of growing up. However, most felt that smacking was out of place in modern childhood, and that other punishments were more effective in bringing about reflection, changing behaviour and supporting good and close relationships with parents.
• While smacking was the most feared form of punishment, it was the emotional distress and humiliation that can be caused by smacking, rather than any physical pain, which children feared.
• Children felt that methods such as restricting access to television, toys and so forth were more effective than smacking as they were longer lasting, inconvenienced them more, and gave them time to reflect.
• Smacking was often associated with parents being out of control, not setting a good example, and not supporting communication between parent and child.
• Some children felt smacking sent a message which conflicted with messages about tolerance and respect in society.
• Some thought smacking had been banned.

Additional evidence
The review included in-depth interviews with children’s social care workers, the police and the Crown Prosecution service (CPS). Overall, these reported that section 58 has made little difference to day-to-day practice. However, some social care workers reported that from a social care perspective, the tests of whether to get involved with a child and family are around the needs of the child and whether the child is at risk of significant harm, not about the criminal law. Issues about offences and defences are not part of their role but the role of police and the courts. However, some social workers felt that if the defence of ‘reasonable punishment’ was removed altogether it would be easier to give a clear message that smacking is unacceptable.

The police reported that they would take into account a wide range of factors in deciding how to proceed with a case: the severity of the injury, the parents’ explanation for the injury, whether or not the parent has understood their actions and whether or not it would be in the interests of the child to proceed in court.
If an assault is reported to them, and there is a lasting mark, it will be recorded as assault occasioning actual bodily harm in line with the charging standard. However, they will often proceed by talking to the parents about how their actions are unacceptable and could lead to a criminal record, and referring them back to children’s social care where appropriate. Where the injury is relatively minor and the parent has understood their actions the police might decide not to take further action.

The CPS make the final decision as to whether to prosecute or not and will also take into consideration that are wider than the facts of the case.

So is it legal?
The review states: ‘The current legal position is clear and appropriate, but can be difficult to understand. It is neither correct nor incorrect to say, “smacking is legal”.’

If a parent smacks their child but the assault and injury constitutes common assault as opposed to assault occasioning actual bodily harm they can use the defence of reasonable chastisement. This review does not outlaw physical chastisement despite the outcry of children’s charities and health and social care professionals. The review states that section 58 has improved the protection of children claiming that respondents that said it had not done so did not offer evidence for this view, instead explaining their belief that all physical punishment of children is unacceptable.

I suppose we have to acknowledge that section 58 is a step forward, English law is not renowned to change quickly, it does at least make prosecutors clearer that assault occasioning actual bodily harm can not be viewed as reasonable under any circumstances. In respect of child protection work in schools, the situation remains the same, if school has a concern that a child may be subject to abuse they should continue to operate locally agreed procedures.

Next steps
The review concludes with statements about what it will do to improve children’s situations including offering parents more advice about managing their child’s behaviour through positive parenting learning.

This article first appeared in Protecting Children Update - December 2007