The Offences Against the Person Act contains offences which are used in courts all over England and Wales on a daily basis. Most people will have heard terms like GBH meaning grievous bodily harm which derive directly from that piece of legislation, but many don’t know that those laws are over 150 years old. The act received it royal assent by Queen Victoria on the 6th August 1861.
The act contains many offences relating to unlawful violence such as inflicting grievous or actual bodily harm, but a question we as lawyers are often asked is it permissible to smack a child?
The simple answer is yes, at present in England and Wales it is lawful to chastise a child in certain circumstances by smacking, although the extent to which is permissible does require further explanation.
Changes to the law in Wales
It has already been outlawed in Scotland and is expected that it will also become unlawful soon in Wales where a 12 week consultation on proposed changes has recently been started.
It was reported that Minister for Children and Social Care, Huw Irranca-Davies 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.”
The minister also said that parents in Wales should be able to confidently manage their children behaviour without resorting to physical punishment. He referred to the changes in legislation to ban corporal punishment in schools many years ago and said that if there was a potential for harm to children, then “it our obligation as a government to take action”.
Scotland announced in October last year that the defence of “justifiable assault” would be scrapped, and if Wales approves the proposals
“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.” If Wales approves the plans it will mean that England, Northern Ireland and the Czech republic will be the only two locations in the European Union that allow chastisement of children by hitting.
Previous generations accepted smacking as normal practice and the “it did me no harm” views also seem to be changing. The Welsh consolation produced figures which seemed to highlight those changes. In 1998, 88% of the public though that “it is sometimes necessary to smack a naughty child”. Asked the same question on 2015 only 24% supported that proposition.
Can I chastise my child without being prosecuted / what is the law on smacking a child?
The defence of reasonable punishment is set out Section 58 of the Children Act 2004 but there is no specific definition of what reasonable punishments is. The act makes clear that it does not amount to a defence in respect of the following offences:
- Section 47 Offences Against the Person Act – assault occasioning actual bodily harm
- Section 20 Offences Against the Person Act – wounding or inflicting grievous bodily harm.
- Section 18 Offences Against the Person Act – wounding or inflicting grievous bodily harm with intent.
In assault cases therefore it could only be used in an offence of common assault contrary to Section 39 Criminal Justice Act 1988.
What is reasonable punishment?
The concept of reasonable punishment has also changed significantly over recent generations. Just before the Offences Against the Person Act was enacted, was the case of R v Hopley. Hopley was a schoolmaster who beat a pupil with the permission of the child’s father, resulting in the death of the child. During the trial the presiding judge, Chief Justice Cockburn said, “A parent or 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”.
The case established a defence of reasonable punishment for parents, carers and teachers and remained in place for over 100 years until corporal punishment was abolished in state maintained schools by 1987 and in all independent schools in 1999. It was banned in children’s homes from 2001, by foster carers in 2002 and in childcare provision in 2007.
Whether a ‘smack’ amounts to reasonable punishment will be determined by the court and will depend on the circumstances of each case, taking into consideration factors like the age of the child and the nature of the smack. But, where any punishment leaves more than a transient or trifling injury, for example a bruise, it is likely to fail as a defence.
How can we assist?
Being accused of such an offence and facing the prospect of prosecution is likely to cause severe anxiety and apprehension. Being convicted of such an offence will probably have a huge impact on your life and can have implications in relation to work and contact with children including your own. It is therefore vital that you seek assistance from a lawyer who understands the law and will fight your corner. Burton Copeland is leading firm of criminal lawyers in Manchester with vast experience in dealing with allegations of all forms of assault and child neglect cases. Contact us online, or call us now on 0161 827 9500, we are available 24 hours.