Abolishing the Defence of ‘Reasonable Punishment’
Introduction
A child, Sara Sharif, has been sadly murdered after years of enduring abuse at the hands of her parents, which has reopened the debate on corporal punishment in England. Sharif’s father was reported to have told the police ‘I legally punished her and she died,’ echoing, in the most tragic way, the potentially fatal issues surrounding the lack of clarity in the reasonable punishment defence.[1]
In England, corporal punishment remains lawful to parents, or individuals acting in loco parentis, provided it constitutes “reasonable punishment.”’[2] While the defence has recently been abolished altogether in Scotland[3] and Wales,[4] the English government confirmed in 2023 that it would refuse to abolish the defence, stating that English law as it stands protects children from violence.[5] I will argue that this is not the case, and England must legislate to ban corporal punishment as a matter of priority.
In short, whilst there is no objective legal definition of reasonable punishment, the defence permits parents to assault or batter their children to ‘discipline’ or ‘correct’ them.[6] The modern language echoes that used in the 1860 case of R v Hopley[7] where it was held that corporal punishment was acceptable to “correct what is evil” in a child. In 2004, the defence was limited by Section 58 Children Act 2004[8] to exclude batteries that amount to Assault Occasioning Actual Bodily Harm (ABH),[9] Assault Occasioning Grievous Bodily Harm (GBH)[10] or Child Cruelty offences.[11] There remains, however, considerable uncertainty in its application which causes confusion as to its scope, evidenced by the Sara Sharif tragedy, and places England in breach of its international obligations to protect children from harm.
Given the lack of objective definition of reasonable punishment, decision-makers rely on the subjective list of factors in the Court of Appeal case of R v H [2001]. [12] In R v H, a defendant beat his son across his back with a leather belt causing bruising. He was charged with ABH and raised the defence of reasonable punishment. Rose LJ held that the following factors[13] were relevant when a judge directs a jury in considering the reasonableness of chastisement:
The nature and context of the defendant’s behaviour,
The duration of the chastisement;
The physical and mental consequences in relation to the child;
The age of and personal characteristics of the child; and
The reasons given by the defendant for administering punishment. [14]
In considering the parent’s intent as opposed to the inherent bodily integrity of the child, R v H fails to prioritise child welfare. Further, R v H does nothing to clarify what reasonable chastisement is, instead it merely presents a broad list of factors to assess reasonableness by, which are interpreted entirely subjectively. Moreover, the list of factors only regards the short-term physical and mental consequences, without consideration of the harm that emanates later in life.[15] As reported by University College London (UCL), a 2021 study in Child Abuse and Neglect evidences that children who were smacked at age three were more likely to suffer from poor mental health and behavioural problems later in childhood.[16] The same result was found in a large scale American study involving more than 160,000 children.[17] A further 2021 Lancet study evidences that physical punishment ‘consistently predicts increases in child behaviour problems over time.’[18] These reports evidence the fact that the R v H factors are inadequate directions to assess harm.
The Explanatory Notes to the Children Act 2004 state that the defence of reasonable chastisement would be available in Magistrates Court hearings for common assault offences.[19] Following a review of Section 58 in 2007,[20] the CPS amended its charging standards to treat a child’s vulnerability as an aggravating factor in deciding how to charge assault cases.[21] This amended the Charging Standard to state that for offences against children, ABH should be the appropriate charge as opposed to common assault, unless the injury is “transient and trifling” [22] or amounts to “no more than a reddening of the skin.”[23] Written evidence submitted in 2012 found that of the seven cases reviewed in 2007 “all involved serious assaults like punches or slaps around the head and all the defendants avoided conviction.”[24] This is alarming evidence that the wide discretion given to the CPS leads to injuries that are more than “trifling and transient” potentially not being charged, and, even when they are, it is unlikely to secure a conviction. The factors in R v H are not specific enough to clarify to investigating police or CPS prosecutors what “transient or trifling” injuries are, nor how injuries could compound to cause both physical and psychological harm. Therefore, both the Charging Standard and the Guidance inadequately protect children from harm.
Further, for those cases where the proper charge remains assault or battery, the Charging Standard does not define what is reasonable, it only refers to the already analysed R v H factors.”[25] The Charging Standard is therefore inadequate. It does not fill in the gaps left by the court in weighing the potential long-term effects on children such as long-term behavioural problems,[26] detrimental child outcomes[27] and mental health issues.[28] As such, this leads to few cases being prosecuted or argued effectively in court. The only solution to rectify this would be to ban corporal punishment entirely, to require investigations of all assaults against children regardless of severity.
Finally, even when children are protected from ABH, GBH or Child Cruelty, the deliberate wording of Section 58 omits to protect children from assaults without bodily contact. As argued by Jonathan Rogers, “the most urgent reason for reform in England” should be the fact that Section 58 only “excludes the defence from charges under section 47 OAPA (ABH), section 20 (GBH) or Child Cruelty where the parent committed a battery.” [29] This in effect permits the reasonable punishment defence to run in cases of assault such as psychological abuse where a child fears imminent battery but does not actually experience it, such as in the case of threats or intimidation. Only a complete ban would sufficiently protect children from all forms of harm.
Finally, England is in breach of its international obligations. On repeated occasions since 1995, the UN Committee on the Rights of the Child has unambiguously stated that fully prohibiting corporal punishment, including by parents, is necessitated by the UNCRC articles 3 (to promote the best interests of the child), 19 (to take all measures to protect the child from all forms of physical or mental violence) and 37(a) (prohibition on inhumane and degrading treatment).[30] The Committee warned in a 2013 report of the harmful effects of corporal punishment and reminded States of their obligations to “eliminate corporal punishment […] in all settings, including the home.” [31]
In 1998, the ECtHR judgment of A v United Kingdom (1999)[32] held that, in permitting a jury to acquit a defendant for beating his child with a cane, the UK was in breach of its positive obligations to protect children from inhumane and degrading treatment contrary to their Article 3 ECHR rights.[33] A v United Kingdom did not require the UK to legislate to ban corporal punishment, however, because the harm had to reach a “minimum level of severity”,[34] to constitute an Article 3 ECHR violation. Section 58 Children Act 2004 was legislated in response to A v United Kingdom in addition to the government’s 2003 Green Paper Every Child Matters[35] and the official response to the Victoria Climbie Inquiry.[36] During a House of Lords debate on the matter, it was argued that the Bill amendment, which later became Section 58, complied with Article 3 ECHR.[37]
Whilst Section 58 mitigated some concerns by removing the discretion of the jury to decide on the R v H factors, it did not remove prosecutorial discretion when deciding to charge. Therefore, Section 58 does not “avoid any risk of ill-treatment and degrading treatment of children” as stated by the ECtHR case of Wetjen and Others v Germany [2018].[38] Wetjen further stated that, in the absence of actual bodily or mental injury, treatment could nonetheless be considered degrading if it humiliates, shows a lack of respect for human dignity or “arouses feelings of fear, anguish or inferiority.”[39] I argue that corporate punishment does meet this level of severity.
In any case, during the House of Lords debate on the Children Act 2004, limited scrutiny was placed on compliance with Article 8 ECHR which presents individuals with the right to respect for his private and family life. The argument that corporal punishment breaches Article 8 ECHR was raised in A v United Kingdom but discontinued because an Article 3 ECHR violation was found.[40] As established in Bensaid v United Kingdom [2001],[41] mental health is an essential component of private life.[42] This is especially the case for children because, as Wetjen held, “the need to take account of the vulnerability of minors has been affirmed at international level.”[43] Article 8 ECHR is relevant regardless of the charge raised or the exact degree of harm inflicted or risked. By failing to safeguard the long-term mental health and bodily integrity of children, English law fails to comply with Article 8.
Conclusion:
Section 548 of the Education Act 1996 banned corporal punishment in schools. When challenged by headmasters of private Christian schools in the case of R (Williamson) v Secretary of State for Education and Employment [2005][44] Lord Bingham held:
“Even if it could be shown that a particular act of corporal punishment was in the interests of the individual child, it is clear that a universal or blanket ban may be justified to protect a vulnerable class.” [45]
It is clear from R (Williamson) that, despite Lord Bingham remarking that corporal punishment in the family “raises more complex questions””[46] in theory the law could protect vulnerable children by way of a blanket ban. As Lord Bingham identified, sometimes a universal ban is justified (and necessary) to protect a vulnerable class.
England must legislate to remove the defence and with it the current ambiguities. This would not only bring us in-line with our international obligations, but it could also be the beginning of a change in attitudes towards children’s rights. It is time for England to join Scotland and Wales, as well as the 36 (out of 46) member states of the Council of Europe,[47] in abolishing corporal punishment.
Footnotes
[1] Independent, ‘Sara Sharif’s father said ‘I legally punished her and she died’, jury hears’ 14 October 2024 << https://www.independent.co.uk/news/uk/crime/old-bailey-woking-pakistan-surrey-god-b2628877.html>>
[2] R v Hopley (1860) 2 F.& F. 202.
[3] Children (Equal Protection from Assault) (Scotland) Act 2019 asp 16 (Scottish Act).
[4] Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 anaw.3.
[5] Emaan Warraich, ‘Government rejects call to ban smacking in England’ BBC News (12 April 2023) 2.
[6] Explanatory Notes to the Children Act 2004 <https://www.legislation.gov.uk/ukpga/2004/31/notes> accessed on 12 September 2023, para 237.
[7] N.3.
[8] C.31.
[9] Contrary to Section 47 Offences Against the Person Act 1981.
[10] Contrary to Section 18 Offences Against the Person Act 1981.
[11] Contrary to Section 1 Children and Young Persons Act 1933, as amended by Part 5 Section 66 Serious Crime Act 2015.
[12] [2001] EWCA Crim 1024; [2002] 1 Cr. App. R. 7; [2001] ELUK 419 (CA (Crim Div)).
[13] Ibid, para 31 (Rose LJ).
[14] n.12), para 35.
[15] Leonardo Bevilacgua, Yvonne Kelly, Anja Heilmann, Naomi Priest, Rebecca E. Lacey, ‘Adverse childhood experiences and trajectories of internalizing, externalizing, and prosocial behaviours from childhood to adolescence (February 2021) Vol 112, Issue 104890 < https://www.sciencedirect.com/science/article/abs/pii/S0145213420305457> accessed on 10 September 2023.
[16] UCL, ‘The long-lasting effects of smacking children’ UCL (14 January 2021) <https://www.ucl.ac.uk/epidemiology-health-care/news/2021/jan/long-lasting-effects-smacking-children> accessed 10 September 2023.
[17] Amy Packham, ‘Smacking Children ‘Does More Harm Than Good And Leads To Mental Health Problems’, Study Finds’ The Huffington Post (27 April 2016) < https://www.huffingtonpost.co.uk/entry/spanking-children-study-mental-health-problems_uk_572094c3e4b06bf544e0fbc5> accessed on 11 October 2023.
[18] Anja Heilman, Anita Mehay, Prof Richard G Wattt, Yvonne Kelly, Joan E Durrant, Jillian van Turnhout, ‘Physical punishment and child outcomes: a narrative review of prospective studies’ (24 July 2021) Vol 398, Issue 10297, p355-364 summary < https://www.thelancet.com/JOURNALS/LANCET/ARTICLE/PIIS0140-6736(21)00582-1/FULLTEXT> accessed 11 October 2023.
[19] Explanatory Notes, Children Act 2004, para 236.
[20] Department for Children, Schools and Families ‘Review of Section 58 of the Children Act 2004’ (October 2007).
[21] ibid [8].
[22] Crown Prosecution Service, Offences against the person, incorporating Charging Standard, Updated 27 June 2022< https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard> accessed on 10 October 2023
[23] Ibid.
[24] Houses of Parliament Education Committee, ‘Children first: the child protection system in England’ (16th November 2012) <(https://publications.parliament.uk/pa/cm201213/cmselect/cmeduc/137/137vw08.htm#footnote_12> accessed on 11 October 2023.
[25] Ibid.
[26] n.18.
[27] Ibid.
[28] n.16.
[29] Jonathan Rogers, ‘” Reasonable chastisement” in England – and Wales [2022] Arch. Rev. 2022, 5, 4-6, 4.
[30] UN Committee on the Rights of a Child ‘Concluding Observations of the Committee on the Rights of the Child: United Kingdom’ (February 1995).
[31] UN Convention on the Rights of the Child, General comment No.15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health’ (17 April 2013), [98].
[32] A v United Kingdom (1999) 2.F.L.R. 959; [1998] 9 WLUK 219 (ECHR).
[33] Ibid, para 24.
[34] Costello-Roberts v United Kingdom (13134/87) [1993] 3 WLUK 388; (1995) 19 E.H.R.R. 112, para 30.
[35] Department for Education and Skills Green Paper Every Child Matters (September 2003) Cm 5860 < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/272064/5860.pdf> accessed on 11 October 2023.
[36] Lord Laming, The Victoria Climbie Inquiry Report, Cm 5730 (January 2003) < https://www.caipe.org/resources/publications/laming-lord-2003-victoria-climbe-inquiry-report-inquiry#> accessed 11 October 2023.
[37] n.1.
[38] Wetjen and Others v Germany (Application 68125/14 and 72204/14) [2018] ECHR 261, para 77.
[39] Ibid, para 73.
[40] n.37, para 26.
[41] Bensaid v United Kingdom (44599/98) [2001] 2 WLUK 186; (2001) 33 E.H.R.R. 10.
[42] Ibid, para 207.
[43] n.43, para 74.
[44] UKHL 15.
[45] Ibid, para 80.
[46] R (Williamson) v Secretary of State for Education and Employment (n 19), para 84.
[47] End Corporal Punishment < https://endcorporalpunishment.org/global-progress/global-table-of-legality/> accessed on 15 September 2023.