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Punishing your Child - Time for an Abolition of Reasonable Chastisement?

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

Cruelty to persons under the age of sixteen is prohibited under Section 1 of the Children and Young Persons Act 1933. However, there is an established common law exception that allows for the reasonable chastisement by parents (including a person in locus parentis) to their children. Maggie Atkinson, the Children’s Commissioner for England, has recently promulgated that parents should be banned from smacking their children.

Some legal mapping will be of assistance here. The Government’s explanatory note to Section 58 of the Children Act 2004 (which removes the defence of reasonable chastisement when battery of a child causes actual bodily harm or worse) states that:

‘[I]t has long been recognised by the law that a parent or person with parental authority may use reasonable punishment to correct a child. This is the defence of reasonable chastisement or “reasonable punishment”’.

More succinctly, Archbold Criminal Pleading Evidence and Practice, Chapter 19, paragraph 237 states:

It is a good defence that the alleged battery was merely the correcting of a child by its parents, provided that the correction be moderate in the manner, the instrument and the quantity of it…

The following test, for determining whether the punishment was ‘moderate in the manner’, post-implementation of the Human Rights Act 1998, was accepted by the Court of Appeal in R v H (Assault of a Child: Reasonable Chastisement) [2001] EWCA Crim 1024:

[T]he judge should direct the jury that, when they are considering the reasonableness or otherwise of the chastisement, they must consider the nature and context of the defendant's behaviour, its duration, its physical and mental consequences in relation to the child, the age and personal characteristics of the child and the reasons given by the defendant for administering punishment.

Nick Clegg suggested, somewhat paradoxically, earlier this year that ‘parents who smack or hit their children should not be judged as long as they do not hurt them’. So, when we live in a society where a “mild smack” from one to another would be considered a criminal offence, why is it that children allow for a meander around criminal punishment? The argument for a complete ban immediately stirs an array of emotions, and the aphorism that ‘I was hit, and it never did me any harm’. Yet, as Claire Fraser simply put it (‘Towards the abolition of corporal punishment and a partnership with our children’ (2003) UCL Juris. Rev. 213):

It is morally wrong that children remain the one group in society that can be hit with impunity, and a law that so offends morality cannot be supported.

It appears antithetical that the UK, who have ratified the European Convention on Human Rights, which, under Article 3, prohibits anyone being subject to torture or to inhuman or degrading treatment or punishment, are yet to reform the law to completely prohibit physical punishment of children. Further, Article 19 of the UN Convention on the Rights of the Child, which has been effective in the UK since 1992, states:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Yet such global conventions lack enforceability, a common downfall in global constitutionalisation. 

It appears from UK case law that satisfaction of the UK’s human rights obligations are being satisfied following the test set out above from R v H, as this test ensures that the ‘reasonableness of the force used during chastisement is judged by the prevailing standards of the time’ (See Mrs Justice Thirlwall DBE at [106] of XA v YA [2010] EWHC 1983 (QB)). This approach stems from the European Court of Human Rights’ (ECtHR) decision in A v United Kingdom (1999) 27 E.H.R.R. 611, where it was stated at paragraph 52:

[U]nder English law it was for the prosecution to prove that the beating of the applicant was not lawful correction, little guidance was provided as to the meaning of “reasonable and moderate chastisement”: in particular, no specific guidance was given as to the relevance of the age or state of health of the applicant, the appropriateness of the instrument used, the frequency of the punishment, or the physical or mental suffering of the applicant or as to the relevance, if any, of the defence claim that the punishment of the applicant was “necessary” and “justified” .

The manner in which a judge must direct a jury, as referenced from the R v H decision, demonstrates the consideration of these points of guidance as enunciated by the ECtHR.  

The decision of A v United Kingdom (at paragraph [37]) also clarified that, in particular to the punishment of children, that for there to be a breach of Article 3 ECHR, the punishment must attain a particular level of severity. Accordingly, and in reference to the decision of Ireland v United Kingdom (1979-80) 2 E.H.R.R. 25 at paragraph [160]:

The assessment of this minimum level of severity depends on all the circumstances of the case. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim must all be taken into account.

Further, the ECtHR confirmed, following Costello-Roberts v United Kingdom (1995) 19 E.H.R.R. 112 at paragraph [41], that in determining whether the punishment in question is in breach of Article 3, the facts of each case are relative to this determination. In particular it depends upon the ‘nature and context of the punishment itself and the manner and method of its execution’. Accordingly, there may be occasions where the punishment does not amount to a breach of Article 3; the punishment alleged has to be demonstrated to have reached the minimum threshold of severity (see Costello-Roberts at paragraph [32] and Tyrer v United Kingdom (1979-80 2 E.H.R.R. 1 at paragraph 33).

Article 3 of the Convention, therefore, is not to be interpreted as imposing an obligation on States to protect, through their criminal law, against any form of physical rebuke, however mild, by a parent of a child (A v United Kingdom at paragraph [55]).

Accordingly, given this responsibility upon States’ criminal laws, the commitment that the UK made to the UN Convention on the Rights of the Child, and following in the footsteps of other European Countries that have ratified the Convention, it is time for the UK to put corporal punishment to bed once and for all. Ensuring that there are no existing defences that justify corporal punishment by parents to their children, and an increase in awareness of the elimination of all corporal punishment amongst children and those who care for them is essential to making this progression.

Further Reading

Council of Europe - Abolishing Corporal Punishment of Children

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Tagged: Criminal Law, Family Law, Human Rights

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