Lawfulness of corporal punishment

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Corporal punishment is lawful in the home, though the defence of “reasonable chastisement” has been limited by amendments to the law in England and Wales, Scotland and Northern Ireland. English common law has allowed parents and others who have “lawful control or charge” of a child to use “moderate and reasonable” chastisement or correction. A ruling in 1860 by 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 to decide what is meant by “moderate and reasonable” in any particular case.

In Scotland the common law defence was restricted by a provision in the Criminal Justice (Scotland) Act (2003), section 51 of which introduces the concept of “justifiable assault” of children, defining blows to the head, shaking and use of implements as unjustifiable (in relation to children under the age of 16 years). In determining whether an assault is justifiable, courts are required to consider a list of factors. In England and Wales, section 58 of the Children Act (2004, in force 2005) enables parents to justify common assault of their children as “reasonable punishment”, but prevents the defence being used in relation to more serious assault charges. In Northern Ireland, the common law defence is restricted by article 2 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order (2006) to the lowest charge of common assault and is not available for offences such as wounding, assault occasioning actual bodily harm, grievous bodily harm or cruelty to a child. In January 2006, the government rejected calls from the UK’s four Children’s Commissioners to prohibit all corporal punishment, including by parents. A public and professional consultation to ascertain the practical consequences of the legal reforms and to gather parents’ views on physical punishment, carried out in England and Wales in 2007, revealed widespread support for prohibition but the government is yet to commit to full prohibition. The National Assembly of Wales has called for prohibition.

Schools

Corporal punishment was prohibited in all state-supported education in 1986 (effective 1987). The prohibition was extended to cover private schools in England and Wales in 1998 (effective 1999), in Scotland in 2000, and in Northern Ireland in 2003.

Penal system

Corporal punishment is unlawful as a sentence for crime, abolished in England by the Criminal Justice Act (1967).

Corporal punishment is regarded as unlawful as a disciplinary measure in penal institutions, but there is no explicit prohibition and the Secure Training Centre (Amendment) Rules 2007 permit the infliction of physical pain (nose, rib and thumb “distractions”) in the name of restraint to maintain order and discipline.

Alternative care

Corporal punishment is prohibited by regulation in residential care institutions throughout the UK (Children’s Homes Regulation Act, 2001, and 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, reg 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.

Workplace

No information.

Prevalence research

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 April 2007, the National Society for the Prevention of Cruelty to Children (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)

In a survey of 1,250 people by the organisation Parenting Across Scotland, 90% of respondents said they choose to discuss problems. While 7% said it was acceptable to smack a child, 20% admitted having done so in the last year, with a further 36% saying they had threatened physical punishment. (Reported in BBC News, 27 February 2007).

The UK Department of Health commissioned a large-scale Community Study of Physical Violence to Children in the Home and Associated Variables in the 1990s. It found very high frequency of physical punishments, including severe punishment. The large majority (91%) of children had been hit. Frequency of hitting declined with age. Only 25% of the babies aged up to one year in the study had never been smacked by their mothers; 14% of these one-year-olds had been smacked with “moderate” severity, and 38% had been smacked more than once a week. The study included interviews with both parents in 99 two-parent families. It found that one fifth of children in these families had been hit with an implement and over one third (35%) had at some time experienced a punishment that was rated as “severe” (defined as punishments “that were intended to, had the potential to, or actually did cause physical and/or psychological injury or harm to the child”). (Nobes, G. et al., 1997, “Physical punishment of children in two-parent families”, Clinical Child Psychology and Psychiatry, vol. 2, no. 2, pp.271–281; also summary presented as a poster by Dr Marjorie Smith at the Fifth European Conference on Child Abuse and Neglect, International Society for the Prevention of Child Abuse and Neglect, Oslo, May 1995)

Research by Save the Children in Scotland, carried out in 2000, looked at the opinions of 1,319 children and young people aged 6-18 years, using focus groups and questionnaires. Of the 1,249 children who completed the questionnaires, 93% said there were other ways that parents could discipline their children, without hitting them. 76% believed that it is wrong for a parent or other adult to hit a child. Most believed that hitting was the result of a parent’s feelings of anger, stress and frustration, rather than a reasonable act, and most described feeling distressed when they were hit. (Cutting, E., 2001, “It doesn’t sort anything”: A report on the views of children and young people about the use of physical punishment, Edinburgh: Save the Children)

Research by Save the Children in Northern Ireland, published in 2002, involved questionnaires and interviews with 189 children aged 4-11 years. Two thirds believed that children were hit because they are “bad, bold, cheeky, doing things wrong or doing wrong things”; one in four believed that children are hit because of how the adult is feeling. More than 80% of children used words like “hurt, sad, sore, upset, unhappy, unloved, heartbroken, awful” to describe how they felt when they were hit. 94% said they would not smack their children when they themselves became parents. Fewer than three in 20 thought it was acceptable for an adult to hit a child. (Horgan, G., 2002, It’s a hit, not a “smack”: A booklet about what children think about being hit or smacked by adults, Belfast: Save the Children)

Comparable findings were revealed in similar research by Save the Children in England and in Wales. (Crowley, A. & Vulliamy, C., Listen Up! Children Talk: About Smacking, Cardiff: Save the Children; Willow, C. & Hyder, T., 1998, It hurts you inside – children talking about smacking, National Children’s Bureau and Save the Children)

In a survey for the National Society for the Prevention of Cruelty to Children in Northern Ireland and the Irish Society for the Prevention of Cruelty to Child of 1,100 children aged 8-15 years, almost a tenth of children reported that teachers threatened to slap them, and 4% said that they actually did, even though corporal punishment is banned. One fifth said their parents smacked them, though relationships with parents were positive. (McGill, P., 1996, “Pupils in Ireland fear test failure”, Times Educational Supplement, 23 August 1996)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“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:

1. 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;
2. 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. 35, 36, 37 and 38 (a and b))

“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 Economic, Social and Cultural Rights

"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

“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)

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)