Summary of law reform necessary to achieve full prohibition
Prohibition is still to be achieved in the home, penal institutions and alternative care settings.
Legal defences for the use of corporal punishment are found in section 58 of the Children Act 2004 in England and Wales, article 2 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006, and section 51 of the Criminal Justice (Scotland) Act 2003. These provisions must be explicitly repealed and explicit prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have authority over children.
Explicit prohibition should be enacted of corporal punishment as a disciplinary measure in all institutions accommodating children in conflict with the law and in all alternative care settings, including public and private day care, residential institutions, foster care, etc.
The UK comprises England, Wales, Scotland and Northern Ireland, each of which has certain lawmaking powers under the terms of devolution, though the UK Parliament (“Westminster”) remains sovereign and retains the right to legislate on all matters. The following report describes the legality and practice of corporal punishment in England, Wales, Scotland and Northern Ireland.
In addition, the UK has a number of overseas territories etc:
Overseas Territories. The Overseas Territories are not part of the UK; they are constitutionally separate with distinct legal systems, though the UK is generally responsible for defence, security, international relations, good governance and citizen wellbeing. The Queen is the Queen of all the Overseas Territories. See separate reports for Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena, and Turks and Caicos Islands.
Crown Dependencies. The Crown Dependencies are not part of the UK; they are self-governing dependences of the Crown and have their own legal systems. The Queen is the head of state of each island and the Crown exercises its responsibilities for the Dependencies through the Privy Council. See separate country reports for Jersey, Guernsey and Isle of Man.
Current legality of corporal punishment
Corporal punishment is lawful in the home. In England and Wales, section 58 of the Children Act 2004 provides for “reasonable punishment” of children. In Northern Ireland, article 2 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006 provides for “reasonable punishment”. In Scotland, “justifiable assault” of children is lawful under section 51 of the Criminal Justice (Scotland) Act 2003, defining blows to the head, shaking and use of implements as unjustifiable.
In rejecting the recommendations of the Universal Periodic Review in 2008, the Government stated that it sees no need for law reform since it believes the current law is working well, parents should be allowed to discipline children and surveys show that the use of corporal punishment in childrearing has declined (23 May 2008, A/HRC/8/25,Report of the working group, para. 25).
Following its second Universal Periodic Review In 2012, the Government again rejected recommendations to prohibit corporal punishment, defending its legality in the home and stating that it did not consider that this constituted a breach of the UN Convention on the Rights of the Child (25 August 2008, A/HRC/21/9/Add.1, Report of the working group: Addendum, annex).
Successive Governments in Wales have since 2002 committed to removing the “reasonable punishment” defence and prohibiting all corporal punishment but initially lacked the power to do so.
However, following an extension of devolution, the National Assembly of Wales has the power to remove the defence and in October 2011 voted to encourage the Government to introduce the necessary legislation. As at April 2013, a Social Services and Well-Being Bill is before the Assembly and prohibition is being debated.
The Scottish Parliament has the power to remove the provision for “justifiable assault”. As at April 2013, a Children and Young People’s Bill is under discussion. However, in August 2012 the Scottish Government stated that it had no intention to change the law regarding corporal punishment.
Corporal punishment was prohibited in all state-supported education in 1986. The prohibition was extended to cover private schools in England and Wales in 1998, in Scotland in 2000, and in Northern Ireland in 2003.
Corporal punishment is unlawful as a sentence for crime. There is no provision for judicial corporal punishment in criminal law.
Corporal punishment is regarded as unlawful as a disciplinary measure in penal institutions, but there is no explicit prohibition. In secure training centres (privately-run centres for young offenders), the Secure Training Centre Rules 1998 (as amended in 2007) allow for the use of force (in the name of physical restraint) in maintaining order and discipline, including the infliction of physical pain (nose, rib and thumb “distractions”). The Rules were declared unlawful by the Court of Appeal in July 2008 but they have yet to be repealed.
Corporal punishment is prohibited by regulation in residential care institutions throughout the UK (Children’s Homes Regulation Act, 2001; Residential Establishments Child Care (Scotland) Regulations, 1996). Residential care workers have been prohibited from smacking since 1991 (Children’s Homes Regulations 1991, SI 1991/1506, regulation 8). It is prohibited in foster care arranged by local authorities or voluntary organisations but is lawful in private foster care. In day care institutions and childminding, it is prohibited by regulations issued in 2002 for Wales and Scotland and in 2003 for England (Day Care and Child Minding (National Standards) (England) Regulations 2003, SI 2003/1996). Guidance states that physical punishment should not be used in day care institutions and childminding in Northern Ireland, but there is no explicit prohibition in law.
A study involving focus groups and face to face interviews with 104 13-22 year olds with experience of youth custody in Austria, Cyprus, England, the Netherlands and Romania found that young people in England expressed the view that physical restraint in custody can be used as a punishment. (Children’s Rights Alliance for England (2013), Speaking Freely: Children and Young People in Europe Talk about Ending Violence Against Children in Custody – Research Report, London: CRAE)
A 2012 poll of 2,011 adults in Britain found that 30% would support and 63% oppose “banning parents from smacking their children”. Of those who said they had never been “smacked” as children, 52% supported a ban and 35% opposed one. Fifty-four per cent of respondents said they agreed with the existing “ban on smacking” in state and private schools, with 39% disagreeing. (Reported in Angus Reid Public Opinion, 13 February 2012)
Research carried out by the National Society for the Prevention of Cruelty to Children (NSPCC) in 2009 and published in 2011 involved 2,160 interviews with parents of children aged under 11, 2,275 interviews with 11-17 year olds and their parents and 1,761 interviews with 18-24 year olds on their childhood experiences. More than two in five (41.6%) of the parents/guardians said they had physically punished or “smacked” their child in the past year: 39.4% of the parents/ guardians of under 11s and 45.9% of the parents/guardians of 1117s. The report compares the responses of the 18-24 year olds with those in a similar study which examined the experiences of 18-24 year olds in 1998. In 2009, 41% of 18-24 year olds said they had been smacked on the bottom with a bare hand by an adult at home, school or elsewhere during their childhood, compared with 53.1% in 1998. Forty-three per cent had been smacked on the leg, arm or hand (61% in 1998), and 13.4% had been slapped on the face, head or ears (21.3% in 1998). (Radford, L. et al (2011), Child abuse and neglect in the UK today, NSPCC)
A 2011 report on madrassas (supplementary schools for Muslim children that operate outside the mainstream education system) found that children experienced corporal punishment, including being “smacked”, hit with a belt and threatened with a stick in some madrassas. The report recommended prohibition of corporal punishment in supplementary schools, including madrassas. (Cherti, M. & Bradley, L. (2011), Inside Madrassas: Understanding and Engaging with British-Muslim Faith Supplementary Schools, London: Institute for Public Policy)
A survey of 55 health care workers working primarily with children (including paediatricians, clinical psychologists, psychiatrists, school nurses and health visitors) in Scotland found that 47% of them incorrectly believed that the law protected children from assault to a greater extent than adults, 40% correctly stated that this was not the case and 13% did not know. (Rae, H. et al (2010), “Health Care Workers’ Knowledge of Current Child Protection Legislation and Child Discipline Practices”, Child Abuse Review, 19, 259-272)
In a survey of 1,000 parents of children aged 0-10 in Northern Ireland, 47% said they had physically punished their children at some point and 45% had done so in the last year. On average, those who had used physical punishment during the last year had done so 8 times. The most common form of physical punishment used was a smack on the bottom with a bare hand, used by 33% of parents, on average 5.3 times in the past year. A quarter of parents (26%) had slapped their child on the hand, arm or leg, on average 5.6 times in the past year; 2.2% had hit their child on the bottom with a belt, a hairbrush, a stick or some other hard object, on average 4.5 times in the past year. Children aged 3-6 were more likely to have been physically punished in the past year (53%) than children aged 7-10 (43%) or 0-2 (33%). Two thirds of parents thought that physical punishment never or infrequently led to the child having increased respect for parents, and 60% that it never or infrequently led to the child learning acceptable behaviour. Forty per cent thought that physical punishment always or frequently made the child more aggressive, 36% that it always or frequently led to long-term emotional upset for the child, and 60% that it always or frequently made the parent feel regret or guilt. (Bunting, L. et al (2008), The “smacking debate” in Northern Ireland: messages from research, Barnardo’s Northern Ireland, NICCY and NSPCC Northern Ireland)
Of nearly 14,000 mothers interviewed as part of the third survey of the Millennium Cohort Study, which tracks the development of more than 15,000 UK children, 45% said that they never smacked their five year old child. Half of the mothers in Wales (49%) said they never smacked their child, compared with 35% in Northern Ireland, 45% in England and 43% in Scotland. (Hansen, K. & Joshi, H. (2008), Millennium Cohort Study: Third Survey: A User’s Guide to Initial Findings, London: Institute of Education)
In 2008, a report for the Growing up in Scotland (GUS) study focussed on parenting styles. Interviews were carried out with over 4,500 parents of children aged on average 22.5 months and 2,500 parents of children aged on average 46.5 months. A third of the parents of 3 year olds (34%) and 16% of the parents of younger children reported that they had smacked their children. Less than one in five of the parents of 3 year olds said they believed that smacking was useful, and fewer still of the parents of younger children. (Bradshaw, P. et al. (2008), Growing up in Scotland: Sweep 2 Overview Report, Edinburgh: The Scottish Government)
A poll for the organisation Parenting Across Scotland revealed that 5% of the 1,000 parents surveyed had smacked their child “fairly often” or “sometimes” in the previous year, 15% had smacked their child one or twice during that time, and around 20% had threatened to smack their child. Only 1% said they believe that smacking is an effective way of changing a child’s behaviour, and 3% that threatening to smack is effective. A majority of parents (71%) had shouted or yelled at their child, though only 7% considered this to be effective. (Ipsos MORI (2008), What Scottish Parents Tell Us, Edinburgh: Parenting Across Scotland)
As part of its 2007 review into Section 58 of the Children Act 2004, the Department of Children, Schools and Families commissioned studies into the views of parents and children in England and Wales on “smacking”. The parental survey involved 1,822 parents, of whom 1,204 had children aged under 18 and 618 had children aged 18 and over. Of the parents with children under 18, 29% said they had smacked their child at some point in the past year, 8% in the past month and 5% in the past week; 38% said they had never smacked their child. Children aged 2-5 were most likely to have been smacked in the past year, with 37% of parents of this age group saying they had done this, compared with 32% of parents of 6-10 year olds, 18% of parents of 11-15 year olds, 10% of parents of 16-17 year olds, and 9% of parents of 0-1 year olds (IPSOS Mori (2007), A study into the views of parents on the physical punishment of children for the Department for Children, Schools and Families, Department for Children, Schools and Families). The study into children’s views involved 64 children aged 4-16 in group and pair discussions. The majority of the children had been smacked at some point in their lives, mostly but not exclusively when they were under 10. Boys and girls from all social classes were smacked. (Sherbert Research (2007), A Study into Children’s Views on Physical Discipline and Punishment, Department for Children, School and Families & Central Office of Information)
In April 2007, the NSPCC published the results of a survey of 1,000 adults in which 77% believed smacking is becoming less acceptable. The survey was part of the NSPCC’s campaign to stop children being smacked in shops. It revealed that a child being smacked in public had been witnessed by 41% of respondents within the previous six months. The majority of adults (86%) would be happy to shop in a smack-free shop, while 40% would actively prefer to shop where smacking was prohibited; almost all (93%) said they would like shops to take action to help parents losing their tempers with their children. When asked how they felt on seeing a child being smacked, 65% of respondents said they felt concerned for the child; 51% felt upset; 51% said they would like to stop the child being smacked, with 42% of those wanting to comfort the child and 47% wanting to help the parent. (Reported by the NSPCC, 10 April 2007)
Statistics published by the Ministry of Justice show that 8,419 incidents of restraint on 10-17 year olds in custody took place in England and Wales during 2011-2012 – a 17% rise from the previous year (Reported by The Howard League for Penal Reform, 31 January 2013).
Between November 2005 and October 2006, there were a total of 3,036 incidents of restraint in the four secure training centres (STCs); 41% of these (1,245 incidents) were perpetrated on girls who represent 34% of the STC population. (Reply to Parliamentary question, reported in The Howard League for Penal Reform (2007), Briefing for House of Lords Debate on the use of restraint in secure training centres)
Statistics published by the Ministry of Justice show that 8,419 incidents of restraint on 10-17 year olds in custody took place in England and Wales during 2011-2012 – a 17% rise from the previous year (Reported by The Howard League for Penal Reform, 31 January 2013). Between November 2005 and October 2006, there were a total of 3,036 incidents of restraint in the four secure training centres (STCs); 41% of these (1,245 incidents) were perpetrated on girls who represent 34% of the STC population. (Reply to Parliamentary question, reported in The Howard League for Penal Reform (2007), Briefing for House of Lords Debate on the use of restraint in secure training centres)
In a 2004 poll of 2,004 adults in England and Wales, 56% agreed that “it is wrong for someone to hit a child in their family”, compared with 31% who disagreed. Over half of the respondents (57%) thought that children and adults should have the same protection in law from being hit while nearly a third (29%) thought children should have more protection; only 7% thought that adults should have greater protection from assault. Nearly three quarters (71%) said they would support changing the law to give children the same protection from being hit as adult family members. (MORI (2004), Attitudes to hitting family members: Research study conducted for the Children Are Unbeatable! Alliance)
In a 2003 study carried out for the Economic and Social Research Council, 58% of parents reported using “minor” physical punishment (such as “smacking” or “slapping”) in the last year, and 71% reported having used it at some point. 9% reported using “severe” physical punishment in the last year, and 16% reported using it at some point. Parents with children aged 2-4 years old were significantly more likely to use minor and/or severe physical punishment than other parents, with 85% reporting using it in the last year. 40% of parents thought it was never acceptable to smack a child, and 98% thought it was never acceptable to hit a child with an implement such as a slipper or belt. The study examined the circumstances in which conflict occurs between parents and children, and found that parents who used physical punishment were twice as likely as parents who did not use physical punishment to report feeling distressed at the time of the conflict, and to say that their child was upset. They were also more likely to report having been in a “bad mood” beforehand and to describe their reaction as “automatic” or “spur of the moment”. The study involved a survey of 1,250 parents of children aged 0-12, and discussions with adults and children. (Ghate D. et al (2003), The National Study of Parents, Children and Discipline in Britain: Key Findings, Swindon, UK: Economic and Social Research Council)
Sixty-one per cent of 1,629 parents who took part in a survey on interactions between parents and children in Northern Ireland said they never spanked their child. Younger children were more likely to be physically punished than older children, and boys were more likely to be physically punished than girls. (Devine, P. & Lloyd, K.(2005), Research Update: Bringing up baby, Queen’s University &University of Ulster: ARK NI Social and Political Archive)
Recommendations by human rights treaty bodies
Committee on the Rights of the Child
"The Committee, while welcoming the State party's efforts to implement the concluding observations on previous State party's reports, notes with regret that some of the recommendations contained therein have not been fully implemented, in particular:
a) with respect to the second periodic report of the United Kingdom (CRC/C/15/Add.188), those related, inter alia, to: ... corporal punishment (§ 35-38) ...;
c) with respect to the initial report of the United Kingdom Isle of Man (CRC/C/15/Add.134) those regarding, inter alia: corporal punishment (§ 26-27) .....
"The Committee notes that the State party has reviewed the use of physical restraint and solitary confinement to ensure that these measures are not used unless absolutely necessary and as a measure of last resort. However, the Committee remains concerned at the fact that, in practice, physical restraint on children is still used in places of deprivation of liberty.
"The Committee urges the State party to ensure that restraint against children is used only as a last resort and exclusively to prevent harm to the child or others and that all methods of physical restraint for disciplinary purposes be abolished.
"The Committee, while noting amendments to legislation in England, Wales, Scotland and Northern Ireland which restrict the application of the defence of 'reasonable chastisement', is concerned that this defence has not been removed. The Committee welcomes the commitment of the National Assembly in Wales to prohibiting all corporal punishment in the home, but notes that under the terms of devolution it is not possible for the Assembly to enact the necessary legislation. The Committee is concerned at the failure of State party to explicitly prohibit all corporal punishment in the home and emphasises its view that the existence of any defence in cases of corporal punishment of children does not comply with the principles and provisions of the Convention, since it would suggest that some forms of corporal punishment are acceptable.
"The Committee is further concerned that corporal punishment is lawful in the home, schools and alternative care settings in virtually all overseas territories and crown dependencies.
"The Committee, reiterating its previous recommendations (CRC/C/15/Add.188, para. 35), in light of its General Comment n° 8 on 'the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment', as well as noting similar recommendations made by the Human Rights Committee; the Committee on the Elimination of Discrimination Against Women; and the Committee on Economic, Social and Cultural Rights, recommends that the State party:
- prohibit as a matter of priority all corporal punishment in the family, including through the repeal of all legal defences, in England and Wales, Scotland, and Northern Ireland, and in all overseas territories and crown dependencies;
- ensure that corporal punishment is explicitly prohibited in schools and all other institutions and forms of alternative care throughout the United Kingdom and in the overseas territories and crown dependencies;
- actively promote positive and non-violent forms of discipline and respect for children's equal right to human dignity and physical integrity, with a view to raising public awareness of children's right to protection from all corporal punishment and to decreasing public acceptance of its use in childrearing;
- provide parental education and professional training in positive child-rearing."
(3 October 2008, CRC/C/GBR/CO/4 Unedited version, Concluding observations on third/fourth report, paras. 6, 38, 39, 40, 41 and 42)
“While noting the entry into force of the Human Rights Act 1998, which incorporates the rights enshrined in the European Convention on Human Rights into domestic law, the Committee is concerned that the provisions and principles of the Convention on the Rights of the Child - which are much broader than those contained in the European Convention - have not yet been incorporated into domestic law, nor is there any formal process to ensure that new legislation fully complies with the Convention. The Committee notes that the devolved administrations have introduced some legal reforms to ensure compatibility with the Convention such as ensuring that the education system in Scotland complies with article 12 and that corporal punishment in the day-care system in Wales is prohibited, but remains concerned that the State party does not ensure that its legislation is compatible with the Convention throughout its territory.
“The Committee encourages the State party to incorporate into domestic law the rights, principles and provisions of the Convention in order to ensure that all legislation complies with the Convention and that the provisions and principles of the Convention are widely applied in legal and administrative proceedings. The State party is also encouraged to provide training in the provisions of the Convention and to disseminate the Convention more widely.
“The Committee welcomes the abolition of corporal punishment in all schools in England, Wales and Scotland following its 1995 recommendations (ibid., para. 32) but is concerned that this abolition has not yet been extended to cover all private schools in Northern Ireland. It welcomes the adoption by the National Assembly for Wales of regulations prohibiting corporal punishment in all forms of day care, including childminding, but is very concerned that legislation prohibiting all corporal punishment in this context is not yet in place in England, Scotland or Northern Ireland.
“In light of its previous recommendation (ibid., para. 31), the Committee deeply regrets that the State party persists in retaining the defence of ‘reasonable chastisement’ and has taken no significant action towards prohibiting all corporal punishment of children in the family.
“The Committee is of the opinion that the Government’s proposals to limit rather than to remove the ‘reasonable chastisement’ defence do not comply with the principles and provisions of the Convention and the aforementioned recommendations, particularly since they constitute a serious violation of the dignity of the child (see similar observations of the of the Committee on Economic, Social and Cultural Rights, E/C.12/1/Add.79, para. 36). Moreover, they suggest that some forms of corporal punishment are acceptable, thereby undermining educational measures to promote positive and non-violent discipline.
“The Committee recommends that the State party:
- with urgency adopt legislation throughout the State party to remove the ‘reasonable chastisement’ defence and prohibit all corporal punishment in the family and in any other contexts not covered by existing legislation;
- promote positive, participatory and non-violent forms of discipline and respect for children’s equal right to human dignity and physical integrity, involving children and parents and all those who work with and for them, and carry out public education programmes on the negative consequences of corporal punishment.”
(9 October 2002, CRC/C/15/Add.188, Concluding observations on second report, paras. 8, 9, 35, 36, 37 and 38)
“The Committee is disturbed about the reports it has received on the physical and sexual abuse of children. In this connection, the Committee is worried about the national legal provisions dealing with reasonable chastisement within the family. The imprecise nature of the expression of reasonable chastisement as contained in these legal provisions may pave the way for it to be interpreted in a subjective and arbitrary manner. Thus, the Committee is concerned that legislative and other measures relating to the physical integrity of children do not appear to be compatible with the provisions and principles of the Convention, including those of its articles 3, 19 and 37. The Committee is equally concerned that privately funded and managed schools are still permitted to administer corporal punishment to children in attendance there which does not appear to be compatible with the provisions of the Convention, including those of its article 28, paragraph 2....
“The Committee is also of the opinion that additional efforts are required to overcome the problem of violence in society. The Committee recommends that physical punishment of children in families be prohibited in the light of the provisions set out in articles 3 and 19 of the Convention. In connection with the child’s right to physical integrity, as recognized by the Convention, namely in its articles 19, 28, 29 and 37, and in the light of the best interests of the child, the Committee suggests that the State party consider the possibility of undertaking additional education campaigns. Such measures would help to change societal attitudes towards the use of physical punishment in the family and foster the acceptance of the legal prohibition of the physical punishment of children.
“… Legislative measures are recommended to prohibit the use of corporal punishment in privately funded and managed schools.”
(15 February 1995, CRC/C/15/Add.34, Concluding observations on initial report, paras. 16, 31 and 32)
Committee on the Elimination of Discrimination Against Women
“... The Committee also notes with concern that corporal punishment is lawful in the home and constitutes a form of violence against children, including the girl child.
“The Committee urges the State party to accord priority attention to the adoption of comprehensive measures to address violence against women in accordance with its general recommendation 19 on violence against women.... The Committee further recommends that the State party include in its legislation the prohibition of corporal punishment of children in the home.”
(18 July 2008, CEDAW/C/GBR/CO/6 Advanced Unedited Version, Concluding observations on fifth/sixth report, paras. 33 and 34)
Committee on Economic, Social and Cultural Rights
“The Committee … also remains concerned that corporal punishment of children in the home is not yet prohibited by law.
The Committee … reiterates its recommendation that physical punishment of children in the home be prohibited by law.”
(12 June 2009, E/C.12/GBR/CO/5, Concluding observations on fourth/fifth report, para. 24)
"Given the principle of the dignity of the individual, which provides the foundation for international human rights law (see paragraph 41 of the Committee's General Comment No. 13) and in the light of article 10.1 and 10.3 of the Covenant, the Committee recommends that the physical punishment of children in families be prohibited, in line with the recommendation of the Committee on the Rights of the Child (see paragraph 31 of the 1995 concluding observations of that Committee (CRC/C/15/Add.34))."
(5 June 2002, E/C.12/1/Add.79, Concluding observations on fourth report, para. 36)
“The Committee is alarmed by the fact that corporal punishment continues to be practised in schools which are privately financed, and at the statement by the delegation that the Government does not intend to eliminate this practice.
“The Committee recommends that the State party take appropriate measures to eliminate corporal punishment in those schools in which this practice is still permitted, i.e. privately financed schools.”
(4 December 1997, CESCR/E/C.12/1/Add.19, Concluding observations on third report, paras. 16 and 28)
Human Rights Committee
“The Committee notes with concern that corporal punishment of children is not prohibited in schools in Bermuda, the British Virgin Islands, Gibraltar, Montserrat and the Crown Dependencies. (art.7 and 24)
The State party should expressly prohibit corporal punishment of children in all schools in all British Overseas Territories and Crown Dependencies.”
(21 July 2008, CCPR/C/GBR/CO/6 Advanced Unedited Version, Concluding observtions on sixth report, para. 27)
“The Committee recommends that corporal punishment administered to privately funded pupils in independent schools be abolished.”
(27 July 1995, CCPR/C/79/Add.55, Concluding observations on fourth report, para. 8)
European Committee of Social Rights
“In its previous conclusion (Conclusions XVII-2) the Committee held that the situation in the United Kingdom was not in conformity with Article 17 of the Charter as corporal punishment was not prohibited in the home.
“The Committee notes from another source that despite the amendments to legislation in England, Wales, Scotland and Northern Ireland which restrict the application of the defense of ‘reasonable chastisement’, this defense has not been removed. The UN-CRC is concerned at the failure to explicitly prohibit all corporal punishment in the home and emphasises its view that the existence of any defence in cases of corporal punishment of children does not comply with the principles and provisions of the Convention on the Rights of the Child, since it would suggest that some forms of corporal punishment are acceptable.
“The Committee notes from the report of the Governmental Committee of the Social Charter to the Committee of Ministers (TS-G (2005) 24, § 230) that while domestic law provides a defence to an alleged crime of violence against a child if the person against whom the allegation is made is a parent administering physical punishment, this applies only if it is deemed to be ‘reasonable’ in manner. This defence, termed ‘reasonable punishment’, has been restricted by Section 58 of the Children Act 2004, to the least serious category of assault. The defence is not absolute, and may be accepted or rejected by a jury. Revised guidance to prosecutors by the Director of Public Prosecutions has clarified the kind of action that may be construed as an assault, and in effect, only a mild smack is likely to be excluded.
“The Committee further notes from another source that corporal punishment is lawful in the home. In England and Wales, section 58 of the Children Act (2004) provides for ‘reasonable punishment’ of children. In Northern Ireland, Article 2 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order (2006) provides for ‘reasonable punishment’. In Scotland, ‘justifiable assault’ of children is lawful under section 51 of the Criminal Justice (Scotland) Act (2003), defining blows to the head, shaking and use of implements as unjustifiable. In rejecting the recommendations of the Universal Periodic Review, the Government stated that it sees no need for law reform since it believes the current law is working well, parents should be allowed to discipline children and surveys show that the use of corporal punishment in childrearing has declined.
“The Committee takes note of the Government's arguments against the conclusion of nonconformity. Firstly, the Government states that when Article 17 was accepted by the UK in 1961 it did not require the banning of all corporal punishment of children. Article 17 was revised in 1996 to expressly require that State prohibit all forms of violence against children but the UK did not ratify the later version. It is not clear whether a definition of violence that the Committee has applied to the later 1996 version of Article 17, which the UK did not ratify, is also now applied to the 1961 version.
“Secondly, according to the Government, the UK does not sanction violence that would be likely to affect the physical integrity, dignity, development or psychological well being of children. Therefore, the UK does not consider that it would be in breach of Article 17 even when the latter is interpreted as prohibiting corporal punishment. In the Government's view, punishment for which the defence of reasonable punishment is available in England and Wales and Northern Ireland does not constitute violence within the meaning of Article 17. The Government is pleased that research in English and Wales shows that fewer parents now choose to use physical punishment and that more parents use alternative approaches to discipline, and hope that trend continues. According to the report, since 2006 significant resources have been invested in helping parents to access behaviourally based parenting courses which have a proven record of helping parents to manage their children's behaviour more effectively and without resorting to physical punishment. The Committee also takes note of the amendments to the Crown Prosecution Service Charging Standard.
“As regards the Government's first argument, the Committee recalls that its interpretation of Article 17 of the Charter in 2001 (General Introduction to Conclusions XV-2) equally applies to all states having accepted either Article 17 of the 1961 Charter of Article 17§1 of the Revised Charter.
“As regards the Government's second argument, the Committee recalls that the Charter was envisaged as a human rights instrument to complement the European Convention on Human Rights. It is a living instrument dedicated to certain values which inspired it: dignity, autonomy, equality, solidarity and other generally recognised values (FIDH v. France, Complaint No. 14/2003, decision on the merits of 8 September 2004, § 27). It must be interpreted so as to give life and meaning to fundamental social rights (FIDH v. France, Complaint No. 14/2003, decision on the merits of 8 September 2004, § 29).
“In its General Observation to Conclusions XV-2, regarding Articles 17 and 7§10, the Committee held that it attached great importance to the protection of children against any form of violence, illtreatment or abuse, whether physical or mental. It stated in this General Observation that when interpreting the scope of Article 17 it was influenced by an emerging international consensus on the issue. As regards its reference to the UN Convention on the Rights of the Child, the Committee recalls that the treaty is one of the most ratified treaties, and has been ratified by all member states of the Council of Europe including the United Kingdom and therefore, it was entirely appropriate for it to have regard to it as well as the case law of the UN Committee on the Rights of the Child (Complaint No 18/2003, World Organisation against Torture (OMCT) v. Ireland, decision on the merits of 7 December 2004, §61).
“The Committee does not find it acceptable that a society which prohibits any form of physical violence between adults would accept that adults subject children to physical violence. The Committee did not consider that there can be any educational value in corporal punishment of children that cannot be otherwise achieved. The Committee holds that to prohibit any form of corporal punishment of children, is an important measure for the education of the population in this respect in that it gives a clear message about what society considers to be acceptable. It is a measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable corporal punishment and what is not (General Introduction to Conclusions XV-2).
“The Committee further recalls (Complaint No 18/2003, World Organisation against Torture (OMCT) v. Ireland, decision on the merits of 7 December 2004, § 64) that its case law is to the effect that the prohibition of all the forms of violence must have a legislative basis. The sanctions available must be adequate, dissuasive and proportionate.
The Committee considers that in the instant case, although the criminal law will protect children from very serious violence in the home, it remains the fact that certain forms of violence, which fall under the definition of 'reasonable chastisement' are permitted. Therefore, the Committee holds that the situation is not in conformity with the Charter as not all forms of corporal punishment are explicitly prohibited in the home.
“The Committee concludes that the situation in United Kingdom is not in conformity with Article 17 of the Charter of 1961 on the grounds that:
- not all forms of corporal punishment are prohibited in the home….”
(January 2012, Conclusions XIX-4 (2011))
“The Committee recalls that Article 17 of the Charter requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It furthermore considers that this prohibition must be combined with adequate sanctions in penal or civil law.
“The Committee notes that information from the report on the Regulations on Children’s Homes which do not allow corporal punishment as a disciplinary measure in children’s homes, in England, Wales and Scotland. It asks whether such a regulation exists for Northern Ireland.
“It notes from another source that legislation prohibiting corporal punishment in all forms of day care, including child minding, has not yet been put in place in England, Scotland or Northern Ireland. Since the precise situation is not clear, the Committee asks that the next report contain detailed information on the prohibition of corporal punishment in all child-care settings, including private ones.
“The Committee further notes from the same source that the abolition of corporal punishment in all schools in England, Wales and Scotland, has not yet been extended to cover all private schools in Northern Ireland. It asks that the next report provide more information on this.
“The Committee notes that corporal punishment within the family is not prohibited. It further notes from the abovementioned source that the defence of ‘reasonable chastisement’ still exists and the State has taken no significant action towards prohibiting all corporal punishment of children in the family. Therefore, it considers that since there is no prohibition in legislation of all corporal punishment in the home, the situation is not in conformity with Article 17 of the Charter.
“The Committee concludes that the situation in the United Kingdom is not in conformity with Article 17 of the Charter on the grounds that:
- corporal punishment in the home is not prohibited….”
(July 2005, Conclusions XVII-2)
“As regards corporal punishment, the Committee notes that it was prohibited in private schools by the School Standards and Framework Act 1998, with the result that corporal punishment is now prohibited in all schools. The Committee wishes to be informed whether legislation prohibits corporal punishment in other institutions caring for children. It notes that not all forms of corporal punishment are prohibited within the family. The Committee refers to its general observations on Article 17 in the General introduction and decides to defer its conclusion on this point pending more information from the British Government on the situation and on its intentions in this regard. It also wishes to receive information on the situation in Northern Ireland and Scotland….
“Pending the information requested … on corporal punishment, the Committee defers its conclusion.”
(1 January 2001, Conclusions XV-2 vol. 2, pages 612-617)
Universal Periodic Review
The UK was examined in the first cycle of the Universal Periodic Review in 2008 (session 1). The following recommendations were made (23 May 2008, A/HRC/8/25, Report of the working group, paras. 56(2), 56(3), 56(4) and 56(5)):
“To consider further measures in order to address the problem of violence against children, including corporal punishment. (Italy)
“To reconsider its position about the continued legality of corporal punishment against children. (Sweden)
“To consider going beyond current legislation and to ban corporal punishment, also in the private sector and in its Overseas Territories. (France)”
The Government rejected the recommendations, stating that it sees no need for law reform since it believes the current law is working well, parents should be allowed to discipline children and surveys show that the use of corporal punishment in childrearing has declined (23 May 2008A/HRC/8/25,Report of the working group, para. 25). It accepted the recognition to consider going beyond current legislation in relation to protecting children from violence but rejected “the implication that it is failing in this regard through the application of its policy on corporal punishment” (25 August 2008, A/HRC/8/25/Add.1, Report of the working group: Addendum, paras. 28, 29 and 30).
The mid-term report, dated March 2010, repeats this assertion and draws attention to the prohibition of corporal punishment in education and care settings and to the review being undertaken of corporal punishment in some education settings which fall outside of the legal framework (Mid-term progress update by the United Kingdom of Great Britain and Northern Ireland on its implementation of recommendations agreed in June 2008, para. 7). The report refers to previous law reforms which limited the application of the “reasonable punishment” defence so that it can no longer be relied upon in cases of assault occasioning cruelty or actual or grievous bodily harm. However, it then attempts to defend the continued legality of a certain degree of physical punishment in childrearing, stating that the Government “does not condone” physical punishment but “does not want to criminalise decent parents who decide to administer a mild smack”: the Government considers the promotion of positive discipline techniques to be sufficient to address the issue.
Examination in the second cycle of the UPR took place in 2012 (session 13). The following recommendations were made (6 July 2012, A/HRC/21/9, Report of the working group, paras. 110(78), 10(79) and 110(80)):
“Reconsider its position about the continued legality of corporal punishment of children (Sweden);
“Take measures to ensure the freedom of children from physical punishment in accordance with the Convention on the Rights of the Child (Norway);
“Introduce a ban on all corporal punishment of children as recommended by the CRC and other treaty bodies (Finland)
The Government rejected the recommendations, stating (17 September 2012, A/HRC/21/9/Add.1, Report of the working group: Addendum, annex): “… The law in the UK only permits physical punishment of children in very limited circumstances. Corporal punishment is unlawful in state and full-time independent schools, in nursery and childminding settings, children’s homes and secure establishments…. The UK Government does not accept that it is in breach of the UNCRC with regard to physical punishment; and believe [sic] that UK is compliant with Articles 19 and 37 in relation to abuse and violence towards children.”
This analysis has been compiled from information from governmental and non-governmental sources, including reports on implementation of the Convention on the Rights of the Child. Every effort is made to maintain its accuracy. Please send us updating information and details of sources for missing information: email@example.com.
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