Can You Smack a Child? What the Law Says in the UK.

Research shows that smacking a child can be physically and emotionally damaging and it’s not an effective way to discipline them. In some parts of the UK, such as Scotland and Wales, smacking a child is against the law, even if you’re just visiting. But in England and Northern Ireland, the law is different - parents can still claim a defence of ‘reasonable punishment’.

In this episode, Alma-Constance and Lucinda speak to Amy Packham, a criminal barrister, Deputy Head of Lamb Building chambers, and a part-time Crown Court judge.

Together, they explore:

·       Why the law around smacking children is different in different parts of the UK

·       Whether teachers or other adults are ever allowed to smack a child

·       What the law means by ‘reasonable punishment’

·       What happens if someone reports a parent for smacking their child

·       How the United Nations Convention on the Rights of the Child fits into all of this

If a child tells you they are being hit or they don’t feel safe, it’s important to act:
➡️ Call 999 in an emergency
➡️ Speak to an adult you trust
➡️ Or contact a confidential service like Childline: 0800 1111
➡️ If you're under 18 and want free, confidential advice, you can also call the NSPCC helpline: 0808 800 5000 or email help@nspcc.org.uk

References and Resources

Find your local social care team through your local council.

NSPCC helpline (via phone, email or online form)

Kids Law Interview Why are Children’s Rights in Scotland the Strongest in the UK?

S.58 The Children Act 2004

NSPCC Survey 2024

The Royal College of Paediatrics and Child Health (RCPCH) Report 2024

Children’s Commissioner for England

Article 19 United Nations Convention on the Rights of the Child 

If you've got any questions, ideas about a topic or someone to interview, get in touch, we'd love to hear from you!! You can email us at kidslaw@spark21.org, contact us through the website: www.kidslaw.info or through social media: Facebook, X and Instagram @KidsLawInfo

Please subscribe, rate, and share the podcast with your friends.
See you soon in the next episode!

Transcript

Hi, I'm Alma Constance. And I'm Lucinda. And together in our Kids Law podcast, we are going to look at how laws affect children as we grow up. So, what are we going look at in this episode down the Constance? 

Well, I have seen some news items recently about the law and parents smacking their children. I know when we interviewed Bruce Adamson, when he was a children and young People's Commissioner of Scotland, that this was banned, and I want to know more about the situation in other parts of the UK.

That's right. Jess Asat MP sought to add a clause to ban all physical punishment in the children's Wellbeing and School's bill physical punishment means anything where a child is punished using physical force, and this is sometimes referred to as corporal punishment. Jersey was the first part of the British Isles to ban smacking in April 2020 Scotland, the first UK Nation made it illegal in November 2020, followed by Wales in 2022. This is different from England and Northern Ireland. Let's speak to Amy Packham, criminal Barrister and Deputy Head of Lambs Building, and a recorder working in the Crown Court.

Hello, Amy. Thank you so much for joining us onto our Kids Law podcast today. We are really happy to have you here. Could you just start off by telling us about your work and whether this involves children?

Hi, Alma and Lucinda, thank you for having me. I am as, Lucinda said a barrister, practicing in criminal law. Which means that I prosecute and defend cases in the Crown Court. I also sit as a part-time judge, which is called a recorder also in the Crown Court. I do all sorts of cases from drugs, importation and supply to sexual offenses, serious violence and murder cases. And I have specific training and experience in handling young and vulnerable witnesses and defendants. This includes, questioning children as witnesses, in criminal cases, and sometimes also representing children in the most serious criminal cases. Children's cases are most often dealt within the youth court, but the most serious offences can still come to the Crown Court. 

So, what is the law about physical punishment of children such as smacking in the UK now?

Well, as you all know the UK is made up of four separate countries and there are, different laws that apply currently in, in those, in Wales and Scotland. Any type of physical punishment, which, includes smacking is illegal and this, applies to anyone who is in those countries, with their children. Of course, in England and Northern Ireland, the position is different. It's against the law for a parent or a person with parental responsibility or carer to physically punish their child. But there is a defence available in, law of England and Northern Ireland. And that is the defence where the physical punishment amounts to reasonable punishment. And that's a defence laid down in section 58 of the Children's Act there are limits on when that defence can be used. It can only be used, for the least serious type of assaults that's, prosecuted in England and Northern Ireland. That is common assault or assault by beating. It's not available for any offence alleging that injury was caused that would amount to actual bodily harm or grievous bodily harm, or indeed to child cruelty.

So, can teachers or other adults legally smack children?

No teachers and other professionals cannot. Physical punishment is illegal in schools and is also illegal in other settings where professionals care for, children such as children, homes, local authority, foster care, homes, and other childcare settings such as nursery. So, it's illegal for teachers or nursery workers to smack another person's child. There is again, a slight caveat to that. And that is if, if a person is employed directly by a parent, so private nanny, for example, or a babysitter, a parent in England and Northern Ireland may give permission for that person to smack their child as long again as it is reasonable punishment and doesn't amount to an offence.

So, who does decide what counts as reasonable punishment?  It comes under section 58 of the Children's Act. And really it's an assessment, of all of the circumstances in which, the punishment was being, given by the parent or carer to the child. So, it would take into consideration all of the, circumstances, including the nature of the punishment, the duration of it, and its frequency. They would also be consideration of the age of the child and the effect, that the punishment had on them. And that could be either physical or mental. So there are, a number of factors that are taken into consideration as to what is reasonable, but it is an, an assessment of the circumstances in which that punishment was, imposed. There has been some, research done into how often the defence of reasonable punishment has been used in the courts. There was a 2007, review by the Crown Prosecution Service, which examined cases following the enactment of section 58 of the Children's Act, in 2004.The review itself identified 12 cases where the defence had been raised, which had led to findings of not guilty or indeed the case not being continued with. There were, imperfections in terms of the sample of cases or the statistical importance of. Review, but that was the best that they could do at that stage.

So, in a period of about three years, nationwide appeared to be 12 cases where the defence had raised, that had led to a finding of not guilty, or a discontinuance. Further information was, obtained by another organization through a freedom of information request, which revealed that between 2009 and 2017, there were only three cases in England where parents had relied on that defence of reasonable chastisement as a legal defence. So, it is very rare. And as I have already said, it is not a defence where there is any level of injury that is more than, reddening of the skin. So, if there's actual bodily harm or grievous bodily harm or there are allegations of child cruelty, then it's not a defence available. So in fact, section 58 doesn't appear on the information that is available, to be being used in very many cases. 

So, what would happen if a parent was reported for smacking their child?

Well, there are a number of agencies who, , could receive a, a report from someone, about, a child being smacked or indeed from a child directly. And so, it would initially depend on who the report was to, for example, if it was to police or children's services or medical professionals or maybe a school. But all of those agencies would have policies as to how they proceed with any, report that they've received. , There would be an obligation on them to investigate, and also of course, to check on the child's safety and welfare. Of course, if that report, and investigation led to, criminal charges, then other agencies would become involved.

So, the Crown Prosecution service would be involved if the police referred it because they wanted to bring a criminal charge. And there is guidance that the Crown Prosecution service has to take into account. They call it their charging standard. And that is, set down in order to help prosecutors determine, whether an offence has been committed, whether, the defence of reasonable punishment might be available to the person who said to have committed an offence.

But the guidance, the charging standards that the CPS use are that, for any injury to a child, which amounts to more than temporary reddening of the skin. The defence of reasonable punishment is not available.

Could you tell us why some countries did decide to change the law? There has been, significant changes over the years in terms of public opinion, which of course leads to pressure through charities or non-governmental organizations putting pressure on governments. To change the law, but the public opinion really has changed quite a lot about appropriate ways to discipline children.

It used to be thought, of course, that smacking a child was an effective method of preventing bad behaviour or, stopping, bad behaviour, at the time. Now there's much more support for the view that all physical punishment teaches children is to resolve disputes with force, effectively creating a cycle of aggression. And the argument being of course, that in using force you are teaching children that there are circumstances in which it's appropriate and acceptable to react with the use of physical force rather than resolve a situation in a different way. So, the impact on children, in terms of how they will then act is, there has been more research and learning into that, but also.

There is increasing evidence from studies of the harmful effects of physical punishment on the children themselves, but also their families. The reasonable punishment defence in England and Northern Ireland, is open to interpretation and other countries have taken the view that a total ban makes the law very clear, and easy to understand, for children, parents, and indeed professionals and the wider public to understand what is deemed to be. Acceptable. And non-acceptable behaviour and criminal behaviour. and decided to change the law So have there been any recent calls to make physically punishing children by parents and carers Illegal in England and Northern Ireland? Certainly, in England there is currently a debate ongoing. And the Children's Commissioner for England, Dame Rachel DeSouza has strongly advocated for banning, smacking stating it's a necessary step to protect children and prevent lower-level violence from escalating. And the Royal College of Paediatrics and Child Health supports this stance highlighting that physical punishment can lead to mental health issues and perpetuate a cycle of violence. But also public opinion has changed and is shifting against, corporal punishment. There was a u gov poll, , in 2024 that indicated 71% of adults in England believe that smacking is unacceptable and that 52% support a legal ban on physical punishment for children. The UK. Government has acknowledged the concerns but has no I immediate plans to change the law.

There is a review, ongoing, from Wales assessing the impact of the smacking ban, which came in there in 2022. The outcome of the reviewers expected by the end of 2025. So, the English government, is awaiting the outcome of that.

 So how do children's rights fit into this issue?

There are a number of, protections against children's rights, including under the Human Rights Act and under the United Nations Conventions, on the rights, they provide children with the right includes England and Northern Ireland is a signatory to, the United Nations conventions on the rights of children and, the UK has been urged to reform the law. As it suggested that it may be a breach of Article 19 of the United Nations Convention on the Rights of the Child.

What would be the case if a child tells someone that they are being hit at home, and what actions should the person take? 

Well, firstly, it would depend on the circumstances.

Someone was telling you they were being currently hit, and you weren't with them, for example, and couldn't see that they were safe, then, you, I would suggest that you advise them that they call, 999 if it's an emergency, if they are in danger or, a confidential service like Child Line 0080 1111. If it's not an imminent threat, but it is a report that this is something that happens at home, then I would suggest that you. Advise your friend to speak to someone that they trust who's an adult. So it doesn't have to be someone in their family, although they may have someone in their family that they felt that they could go to, but someone like a teacher or a, , a pastoral lead at school or a school counsellor, would be, in a position to advise them and, and help them , and make sure that they're not in a, in an unsafe environment.

I have a question. I ask all of our guests, what were you like at 10 and what did you imagine you'd go on to be as an adult as a 10-year-old? My interests outside school were gymnastics and springboard diving and so I was all about. Those at that age, and competing, in both, at that stage. I did know that I wanted to be a criminal barrister when I grew up. I don't know where it came from because I didn't have any family members who were lawyers or anything like that, but it was something that I must have seen on television or reported somewhere or heard about it this and it was something that always appealed to me.

Well, thank you so much for talking to us today. Do you have any final advice for young people who might want to understand more about this topic? Well, I suppose advice for young people who want to understand more about the topic is to seek out information about it, whether that's through the internet and research that they can do on the internet, whether there are, charities or, or groups locally that might, be campaigning for a change in the law or raising awareness of the issues that corporal punishment. , Has on families and young people. And so there may be, any number of groups, either on a national or a local level that, a young person might be able to get involved in, including, lobbying MPs if it comes to that.

Excellent. Thank you so much. Was there anything, Alma, that you wanted to add? I don't think there's something to add, but just a thought that occurred to me. Why do you think there's such a big debate about this? Because, I mean, from my point of view, children should not be properly punished. So is there a reason, there's such a big debate about it now? I suppose it is that, , I. There historically was the view that it was the appropriate way to discipline children, or at least an appropriate way to discipline children, and that if children were badly behaved, or difficult, that this was a way of controlling that behaviour and preventing that behaviour.

What I think has changed is that there is more research and learning, as I've already said, that in fact all corporal punishment may do is perpetuate that, aggression and physical force going forward. But I think in terms of why there remains, any debate about it and why it isn't just obvious that it, it should be banned, is probably that there are those traditional views that are still held by older parents and, the polls show that that is changing over time. And that probably is as the younger generation grow up, become parents themselves, that those views are simply changing with the times. And I'm fairly confident that there will be a ban at some point, and hopefully sooner rather than later. It may happen after this, review of Wales, and I'm guessing they're choosing Wales rather than Scotland because Scotland has a different jurisdiction.

Yes. So there are different laws, and the Scottish law is. Further removed from English law. So Welsh law is much, more similar. Although they do of course have their own laws that are applying as the [00:18:00] ban there shows that they do have the power to change their own legislation. And one of the other things I think Elma is that, sometimes in the press and certainly reflects some people's views that it's a personal matter and that the state shouldn't get involved. But that doesn't really make sense when it comes to injuring, someone. And as Amy says, it's very much thought to be an outdated practice, but it is difficult to know truly. Why it couldn't be changed? Maybe if, the age for voting comes down, MPs are going to have to look at their policies, and consult children, aren't they?

Well, young people, I, should say and also I was wondering whether, they're concerned that, parents might be prosecuted, for things that would be trivial, but I'm guessing, you know, the police and social services are so used to looking at the circumstances that if you trivially assorted someone else you wouldn't be prosecuted. Do you think that's right? I do think that's right. And certainly, the fact that, a number of people may well think it's an internal family issue, when it comes to discipline, how, a parent chooses to discipline their child.

but in terms of decisions to prosecute there, are. Checks and balances in place. And the crown prosecution service, have to not only apply the evidential test as to whether there is enough evidence to prosecute someone, but they also have to take a decision as to whether it's in the public interest to prosecute that person. So, it's a two-stage process, and it may be that, if the parent who had been reported or admitted, accepted, on one occasion smacking a child that had caused no, injury was reported and otherwise they had no, concerns about the parenting of that child, and the child was clearly, normally well looked after.

I think it's very unlikely that in those circumstances a decision would be taken, that it would be in the public interest to prosecute that parent for a one-off incident. For example, as long as of course there was no, harm caused to the child. So there are checks and balances in place to prevent there being an opening of the floodgates of otherwise reasonable parents being prosecuted.

Yes, that's marvellous. 

Thank you so much for adding that. It was really helpful to put that into context. Alright, thank you both and nice to meet you. Bye-bye. 

Well, Alma, what did you think about what Amy told us? 

well. Amy told us that any kind of physical punishment is illegal in Scotland and Ireland, even if you visit these countries. Physical punishment is also illegal in schools, children's homes, local authority, foster care, homes, And childcare settings in England and Northern Ireland. But parents and carers who have been given permission can use it as a defence of reasonable punishment under children Act 2004. If a parent is reported to have physically hurt their child, there will be an investigation to check up on the child safety and wellbeing. This government said it is going to review the law by looking at the experience of Wales in a report by the end of 2025.

 It is reassuring that most adults think it is wrong to physically punish children and that there should be a law to ban this. And also, that allegations are investigated very carefully by social care services and the police to check on the child safety and welfare. It will certainly be interesting, to read the report. That is coming out at the end of the year, and to see whether this will result in a change of the law.

 In our podcast, we've been exploring how laws work and affect young people. All of these things help children understand their rights and responsibilities so that they can make informed decisions not only about their lives, but also about voting for MPs who make the laws and understanding how the legal justice system works, it's also important that children know they should be kept safe and that adults must care for them.

Remember, if you have any worries, talk to an adult you trust and tell them how you feel. This includes your teachers at school who are there to look after you too. So tell them that you need to talk to them. You can call Childline on oh 800 double one, double one. If you are under 18 and want free confidential advice, you can also contact the NSPCCC helpline. 0808 800 5,000 or by emailing help@npcc.org.uk. You can also find more information on the Kids law.info website. Keep your questions coming in. Please subscribe, rate and share the podcast with your friends. Bye!