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 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 These provisions must be explicitly repealed and explicit prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults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.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. In England and Wales, section 58 of the Children Act (2004, in force 2005) 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.

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. The Rules were declared unlawful by the Court of Appeal in July 2008.

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, but there is no explicit prohibition in law.

Prevalence research

Surveys by the National Society for the Prevention of Cruelty to Children (NSPCC) in 2008 found that about 7% of teenagers aged 15-17 had been hit by a parent in the previous six months, with one in eight children of all ages smacked during that time. (NSPCC survey, reported in The Guardian, 8 October 2008)

A nationally representative survey of parents, children and discipline across Britain, for the Economic and Social Research Council, revealed in 2003 that 9% of parents reported using “severe” physical punishment. (Economic and Social Research Council, Ghate, Hazel and Creighton (2003) National Study of Parents, Children and Discipline in Britain, ESRC)

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).

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)

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)

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:

1. 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;
2. 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;
3. 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;
4. 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:

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. 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

"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)