36.36 Reasonable punishment and smacking

LEGISLATION

What is the law on smacking children?

It is unlawful for a parent or carer to smack their child. There is however a defence available to a parent or person acting in loco parentis where the smack amounts to “reasonable punishment” This defence is laid down in Section 58 of the Children Act 2004, but it is not defined in this legislation.

The fact there is a defence in law does not mean that a crime has not been committed.

Whether a ‘smack’ amounts to reasonable punishment will depend on the circumstances of each case taking into consideration factors like the age of the child and the nature of the smack. Physical punishment will be considered ‘unreasonable’ if it leaves a mark on the child or if the child is hit with a fist/closed hand or an implement such as a cane or a belt. It would also be deemed unreasonable if smacking became any more than an isolated incident.

Section 58

Section 58 of the Children Act 2004 limits the use of the defence of reasonable punishment so that it can no longer be used when people are charged with the offences against a child of wounding, actual or grievous bodily harm or cruelty. Therefore, any injury sustained by a child which is serious enough to warrant a charge of assault occasioning actual bodily harm cannot be considered to be as the result of reasonable punishment. (NSPCC).

A parent can be charged with a criminal offence if they harm their child under the following certain offences: This also includes any other person that is a carer or works with children:

• an offence under Section 18 and 20 of the Offences against the Person Act 1861 (wounding and causing grievous bodily harm)
• an offence under Section 47 of that act (assault occasioning actual bodily harm) 
• an offence under Section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16)

PHYSICAL PUNISHMENT

Physical punishment or chastisement of children and young people can have a very detrimental effect on their physical, mental and emotional wellbeing.

Physical punishment, such as smacking, slapping, pushing or hitting with an implement can cause:

• Direct physical harm or injury such as bruises, cuts, reddening of the skin, scratches, swelling or even broken bones;
• Mental harm such as anxiety, isolation, feeling victimised, damage to self-esteem, or a reduction in confidence;
• Increased risk of anti-social behaviour from the child;
• Increased aggression in children including fighting with siblings, friends and using violence to seek attention;
• Increased violent and criminal behaviour in adulthood;
• An acceptance that violence is OK, and it is fine to use force to get your own way, if you are annoyed with someone or if they have hurt you;
• Breakdown in family relationships, with resentment that could affect the relationship between parents and children into their adulthood.

There is no justification for inflicting pain on a child or young person as a parent (or any other adult carer).

Any form of physical punishment that leaves a mark on a child or young person is considered an assault and is illegal under the Section 58 of the Children Act 2004.

GUIDANCE FOR STAFF

1. Where physical chastisement/smacking (with no injuries and no implement used) is known to have occurred and comes to the attention of social care staff, a conversation with the Police should take place to confirm known history and a joint decision made as to the best way to proceed. Ultimately, this is still an offence of common assault and the defence is not an automatic right.
2. Contact the relevant area for Surrey Safeguarding Investigation Unit or contact 101 whenever abuse is suspected and whenever a child has suffered or likely to suffer significant harm.
3. If Police become aware physical chastisement/smacking has taken place, a conversation should be had with the Surrey Children's Single Point of Access (C-SPA) and/or child’s allocated worker (where appropriate). Following this professional conversation, a decision will be made about the best way to proceed which may involve police only or other professionals as appropriate.
4. Low level reports of physical abuse against a child will be an offence of Common Assault (section 39 of the Offences Against the Persons Act 1861). Reports of smacking will always constitute an offence and any such report of abuse to the police will be crimed accordingly. If the defence of “reasonable punishment” if offered and accepted the report will reflect this.
5. Where professionals are aware of an assault on a child or young person resulting in any marks/injury to the child or the child/young person was hit with an implement, this must be reported to police and a strategy discussion convened. This constitutes an offence for which the defence of reasonable punishment is not available.
6. Where the seriousness of the incident alongside any other information relating to the incident, or other exploration of the situation, suggest the child may be at risk of serious harm then a strategy meeting should immediately be convened.
7. In relation to children in receipt of Early Help, it is acknowledged that while smacking may occur, it is important to respond appropriately and smacking should always be discouraged as it is proved that they are better ways to discipline children.