The demise of ‘reasonable chastisement’: will we see a smack ban in England?
2 Feb 2023
In a blog, Hickman & Rose associate Rose Commander addresses the vexed question of the ‘reasonable chastisement’ or ‘reasonable punishment’ defence against allegations of child cruelty and assault.
Whether and how adults should punish children in their care is a highly emotive issue which always raises strong opinions.
Some people believe that parents and carers should have the right to make their own choices about what is, and isn’t, reasonable punishment. They argue that they should be able to physically reprimand a young person under their care if they consider their misbehaviour merits it.
Until recently, this perspective has been reflected in law across the UK with the ‘reasonable chastisement’ or ‘reasonable punishment’ defence which was available to those accused of assault. In recent years, however, Scotland and Wales have removed this defence, and in doing so have ushered in what are widely described as ‘smacking bans’ in these two countries.
The same has not yet happened in England, but a combination of factors indicate that a de facto smacking ban may nonetheless be emerging in England.
Parents and carers of young people are advised to understand the law around physical punishment in England, and the way it is being interpreted by police forces and social services.
What is ‘Reasonable Punishment’ or ‘Reasonable Chastisement’?
Initially introduced into English and Welsh common law in Victorian times (R v Hopley (1860)), ‘reasonable chastisement’ is the term commonly given to the defence against assault by which parents or caregivers argue that their physical punishment of a child was justified.
‘Reasonable chastisement’ has, since 2005, been a defence against the offences of common assault and battery (section 58 Children Act 2004). It is not available in relation to more serious assaults, usually where an injury is inflicted that requires medical attention, or child cruelty.
For the defence to apply, the punishment inflicted must be ‘moderate and reasonable’. It is available to a parent or someone acting in loco parentis (anyone assuming the role and responsibility of a parent). It has been against the law for teachers to use any force on a child since the 1980s.
What is effectively the same defence was called ‘justifiable assault’ in Scottish law.
These defences mean that any proposed criminal prosecution for assault would not normally be pursued if the punishment were reasonable (taking into account factors such as the nature and context of the adult’s behaviour), and either there was no injury, or that the injury was minimal with no medical input required, for example a temporary reddening of the skin or minor bruises or abrasions.
Why did Scotland and Wales introduce smacking bans?
Child safety campaigners have long argued that the ‘reasonable chastisement’ defence may be misused by violent abusers to mask serious assault. They point to the serious and long term psychological damage physical punishment can wreak, they argue that a child’s injuries may be serious even if not visible. They highlight the fact that emotional, vulnerable children may feel unable to give accurate testimony about what they have endured.
These factors and others led both the Welsh and Scottish Governments to recently change their laws.
Scotland removed the ‘justifiable assault’ from its criminal code in 2020 in the Children (Equal Protection from Assault) (Scotland) Act 2019. Wales did the same in 2022.
These changes mean all forms of physical punishment against children, such as smacking, hitting, slapping and shaking are illegal in all circumstances in both Scotland and Wales. This also applies to visitors and holiday makers.
The English (and Northern Irish) exception
At the time of writing, it is still possible for a carer to physically punish (including by smacking, hitting or slapping) a child under their care in England and Northern Ireland so long as they are moderate and reasonable, and no injury is caused.
But, as a criminal defence solicitor working in this area of law, I have noticed a significant shift in the way the English authorities are treating allegations of child assault over the past two years.
I have been struck by how English police forces are taking allegations of assault against a child increasingly seriously. In our experience, the police are much more likely to launch full investigations into this sort of claim, and do so not only when the allegation is made directly by the child to the police, but also when it comes via third parties – other family members, reports from schools, social services or medical professionals family lawyers or members of the public.
How do the police investigate alleged child assault?
Any police investigation involving a child is likely to be a traumatic experience, especially where a parent is a suspect.
While the priority in any investigation must always be in securing the best interests of the child, these cases can have a damaging impact on the whole family. Even if ultimately no criminal charges are brought, suspects often wait for months while the allegations are investigated. Sometimes they do so whilst subject to bail conditions that prevent them from having any contact with their children.
Police interviews of young people are usually undertaken by specialist officers and are video recorded. Often there is parallel social services involvement.
In my experience, a parent accused of assaulting their child will often be asked to attend a voluntary interview under caution or, in certain and more unusual cases, be arrested.
Anyone who finds themselves in this type of situation is advised to take legal advice as early as possible. The way an accused person deals with a police interview – and indeed the way they deal with the early stages of any police or social services investigation – can be vital in determining how a police investigation proceeds. Where there is no case to answer, how a suspect engages with the authorities at the beginning of an investigation can be crucial in stopping any police action quickly.
Regardless of its outcome, any investigation into an alleged assault on a child is likely to be extremely upsetting and stressful. For many people it will be the most traumatic thing to have happened to them. It may also have an impact on a suspect’s career and foreign travel. A specialist lawyer can help guide you through this difficult situation.
Will England see a ‘smacking ban’?
While there does not currently appear to be the political will for the UK Government to remove the reasonable chastisement defence from English law, one can make the argument that England is seeing the emergence of a de facto ‘smack ban’ nonetheless.
Parents and carers of young people in England who fear they may be caught up in such matters are advised to seek expert legal advice as soon as possible.