Physical Child Punishment Essay
There are those who say that hitting children is wrong and those who see physical punishment as a matter of individual parent or carer. English Law has found an appropriate balance between these two positions'. Explain and critically comment on the above statement?
This statement identifies an important tension between the role of a legal system to, on the one hand, allow parents/guardians to raise their children autonomously [which may, and often does, involve physical chastisement], whilst on the other, enforcing the moral position that hitting children is wrong. I shall commence this essay with a brief analysis of these two positions. I shall then analyse how the law currently attempts to address the tension between them, and go on to evaluate whether, as this statement suggests, English law has in fact managed to strike this balance appropriately.
Should hitting children be prohibited?
The Criminal Law in England and Wales prohibits one adult from striking another [i.e. via Offences against the Person Act 1861]. The question we must ask here is, are there any good reasons from deviating from this stand point simply because the party being struck is a minor, and the perpetrator his parent/carer? As Hammarberg (1990, p99) writes, we can no longer simply rely on the idea that children are 'possessions' of their guardians [and as such the law should not interfere in the issue of chastisement], as this is clearly out-dated; whilst a child may need a parent for support, he/she is an individual human being, and as such is not a possession of the parents for them to do with what they choose. We can see this thinking illustrated through abortion laws; a mother may not abort after a certain period of time; if the child was her 'possession' in the eyes of the law, then there would be no reason for criminalising a late-abortion. The advent of a strong human rights culture has propelled such thinking, and has led 'children' as a group to be seen as a 'vulnerable group' in special need of protection; child abuse is now a well-known phenomenon, and the possibility of this alone is reason enough to warrant at least some state intervention.
Early public record of this thinking can be seen from the Declaration of Geneva 1924 which proclaimed that "mankind owes to the child the best that it has to give". This notion was reinforced by the United Nations in its 1959 Declaration on the Rights of the Child, and 1979, two decades later was designated the International Year of the Child. All this seemed to culminate in the United Nations Convention on the Rights of the Child 1989 a detailed international instrument complied by the UN on the rights of children, the primary focus of the intrument being the "best interests of the child". Van Beuren comments (1995, p xix) "international law now provides policy makers with a diplomatic and non-political framework within which it is possible to argue for the incorporation of specific children's entitlement". The central issue is one of respect, a respect drawn from the "emotional maturity" of a child which demands viewing the child as a separate person (Van Beuren 1995, p xxii). "It is therefore perhaps fitting that the Convention has heralded a global evaluation of the right of parents to physically chastise their children" [R. Smith- The End of Corporal Punishment Of Children? Recent English Developments [2003]].
Should parents/carers be given the autonomy to discipline their own as they see fit?
On the other hand however, it is the parent/carer's role and responsibility to educate their child. 'Parental responsibility' entails 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.' [Children Act 1989, s.3(1)] One of these responsibilities is in ensuring that their children of compulsory school age receive 'full-time efficient education, suitable to their age, ability and aptitude and to any special needs they may have' [Education Act 1996, s.7]. In order to fulfil this unique role, the law must recognize that parents have unique, unreciprocated powers to control their children's behavior, and must recognize that parents may use physical chastisement. Such educative punishment can be seen as far back as biblical times ["he that spareth his rod hateth his son" (Proverbs 13, v24)].
If the answer lies between these two positions, the location of the balance is wholly dependent upon what is deemed as unreasonable, and what should be classed as 'reasonable chastisement'. There is a murky line between the two, but it is a line which the law has the unenviable task of having to draw, not least because of the burdens placed on English law by the Human Rights Act and ECHR mean that the protection of children from such excessive chastisement cannot be taken lightly or worse, ignored.
In the next section of this essay I will examine how the national law currently stands on this issue, discussing the influence of European Human Rights Law on this position, along with the most recent case law developments in this area.
The law as it stands:
The Children & Young Persons Act 1933 made it an offence for anyone with the charge or care of a child or young person to 'wilfully assault, ill-treat, neglect, abandon or expose the child in a manner likely to cause unnecessary suffering or injury to health'.4 It goes on to specify that: 'Nothing in this section shall be construed as affecting the right of any parent, or (subject to section 548 of the Education Act 1996) any other person having the lawful control or charge of a child or young person to administer punishment to him'. [Children and Young Persons Act 1933, s.1(7)]
Under the current law, if a parent is charged with assault for physically chastising a child, he or she may plead the defence of 'reasonable chastisement'. It is then for the court to determine whether or not the punishment was 'moderate and reasonable' taking into account all the relevant facts of the case. Unreasonable and excessive punishment is thus already against the law.
The Defence of 'reasonable chastisement'
For centuries it has been the common law that a parent is justified in using 'reasonable force' to discipline her or his child. This defence to the common law charge of assault was recognized and qualified in the case of Smith (1985), where the Court of Appeal stated that to quash this defence, the prosecution must prove that D 'did more than inflict moderate and reasonable chastisement on the child'.
However, with the advent of the HRA 1998 which incorporated the ECHR into domestic law, the test for this defence has come into some conflict with Article 3 of the Convention which prohibits 'inhuman or degrading treatment or punishment'
In 1978 the European Court of Human Rights, in the case of Tyrer v UK, ruled that judicial birching of a juvenile breached Article 3 of the European Convention, and even more recently, in the case of A v UK (1998), the conflict between the defence of 'reasonable chastisement' and Article 3 really reached a peak:
In this case, the stepfather of a child was charged with assault occasioning actual bodily harm under s.47 Offences Against the Persons Act 1861, for caning his step-child, leaving physical markings and injuries. The defence did not dispute that the stepfather had caned the boy on a number of occasions, but argued that such chastisement was reasonable and necessary since A was a difficult child. The Judge advised the jury that: "It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent, in this case the stepfather, provided that the correction be moderate in manner, the instrument and the quantity of it.". (Court para 10, Commission para 19), and as a result the jury returned with a not-guilty verdict.
The child and his father, dissatisfied with this verdict, decided to bring an action before the European Court of Human Rights for alledged violations of Articles 3, 8, 13 and 14 of the European Convention.
The Commission stated (para 32) that there were two principal issues in this case: "whether the applicant was subjected to degrading treatment or punishment within the meaning of Article 3 and, if so, whether State responsibility attaches to the United Kingdom in respect of such treatment or punishment"
The Commission unanimously found that the facts of the case did disclose a breach of Article 3, as the severity of the punishment surpassed the minimum level require to infringe this Article; It was held that the assessment of where this 'minimum' resides depends upon the particular circumstances of each case; factors to take into account including duration of punishment, the mental and physical effects this punishment had on the child victim, and the age and state of health of the child. Support for this was drawn from the case of Ireland v UK (1978). In the 2001 case of R v H, it was held that in addition to these factors, juries should consider the reasons given by the defendant for administering the punishment.
The identity of the Defendant has also proved a critical issue, especially where the violence was of an institutional nature [i.e. perpetrated by an agent of the state]. This was the issue in the case of Tyrer v United Kingdom, (1978); in this case, the Court was concerned that judicial corporal punishment was institutionalised violence (Tyrer, para 33) and an assault on the recipient's dignity and physical integrity. This was also the case in Campbell and Cosans v United Kingdom. This case regarded corporal punishment in school, and it was held that the school, in their role as purveyors of education is responsible to the state for the carrying out of that education. This case did however raise an important point about the nature of humiliation and degradation; the belting that the child in this case received was such a common occurrence in Scottish Schools at the time "that the applicants were neither humiliated or debased in the eyes of others or of themselves to the requisite degree" (Campbell and Cosans at paras 28-30).
In A v UK, the punishment lacked this element of "institutionalised violence", having been administered by a legal guardian of the child, his step-father. The Commission held however that his was not the determinative factor by which the Court distinguished this case from cases such as Campbell, rather, the nature of the punishment (para 40), which was evidentially much more severe in this case.
Likewise, the Commission distinguished this case from that of Costello-Roberts v UK (1993). In this case a seven year old child was smacked, by his Private School teacher, three times by a soft soled shoe through his shorts, leaving no visible sign of injury. As such the Commission held that it was insufficiently severe to constitute breach of Article 3
A brief aside: Judicial Approaches to Convention Rights.
At this point I would like to deviate for a moment to discuss two cases which have come to light this year, which although do not specifically relate to the debate at hand, do illuminate the way the English judiciary are approaching the issue of upholding individual's Convention rights.
The first is the case of R(W) v Commissioner of Police for the Metropolis and another [2005]. This case concerned Section 30(6) of the Anti-Social Behaviour Act 2003, which police constables and Community support officers believed gave them the power to 'remove' children from certain 'dispersal areas'. Brooke LJ held that as the power was permissive rather than coercive, breach of Convention rights were not at issue here; s30(6) conferred no power on the police or community support officers to interfere with the movements of someone under the age of 16 who was conducting himself lawfully. This is an example of the Courts reinterpreting domestic legislation to give effect to Convention Rights.
In R (SB) v Headteacher and Governors of Denbigh High School, SB sought judicial review arguing that her rights under Article 9 of the Convention [to manifest her religion in public] and under Protocol 1/Article 2 of the Convention [right to education] had been breached by her unlawful exclusion for not dressing in accordance with the schools uniform policy. They held that Article 9 had not been breached, as it was necessary in the interests of democracy for schools to prescribe their own school uniform policy and is a right given to them by law. They went on to say that refusal to permit variations in uniform to reflect religious differences could be capable of objective justification, although in this case the fact that the school already permitted Muslim girls to distinguish themselves from other pupils by wearing a shalwar kameeze meant that the restriction on SB's expression of her own particular strand of religious belief was not obviously capable of objective justification. This is another example of courts interpreting the situation so as to avoid giving effect to Convention rights over domestic law and tradition.
Should the defence be abolished, or has the balance been struck appropriately?
The fact of the matter is that whilst it is true that the test of 'moderate and reasonable chastisement' does not mesh perfectly with the 'degrading and inhumane' treatment test for breach of Article 3 ECHR, this does not mean that the law has not struck the right balance. In the remaining part of this essay I will argue that there is no strong argument for removing the 'reasonable chastisement defence', as some commentators argue, as it is rarely ever successfully relied upon any more anyway [Between November 2001 and August 2004, the reasonable chastisement defence was used in only eleven cases, resulting in just five acquittals, including one case which was dismissed because of discrepancies in witness accounts.] The point is that the defence must remain to preserve the balance between the two positions in the statement; whilst the defence is rarely used, the point is that it is available to those parties who genuinely should not be punished and taken away from their child as they were simply following their duty as a parent to educate their child.
There seems, in the English consultation paper [Joint Committee on Human Rights, 19th Report, 19 May 2004], to be some suggestion of the defence of reasonable chastisement being removed for "more serious offences" and that the defence should continue to be made available for common assault applicable when injuries amount to no more than grazes, scratches, abrasions, minor bruising and swelling, reddening of the skin, superficial cuts or a black eye. [This is a point raised by Chris Barton in 'Physical Punishment Of Children, Family Law; Volume 30, page 258]. To remove or limit the defence of reasonable chastisement would not provide children with any more protection than they have under the existing legislation; Unreasonable punishment is already against the law.
Some commentators go as far as suggesting that the defence shouldn't exist at all; 'limiting the defence of reasonable chastisement or removing it for more serious offences would adequately protect children's rights. We do not agree that the defence should, for example, continue to be available for common assault charges.' This proposition is put forward in Christina Lyon's book Loving Smack, Lawful Assault [Loving Smack or Lawful Assault; Christina M Lyon, IPPR, 2000 page 25] in that an amendment to the criminal law is not enough on its own to lead to change. She recommends a change to the civil law/family law as well. She suggests possible amendments to the definition of parental responsibility to include a role to provide the child with proper care and security and to ensure that the child is not subjected to corporal punishment or any other offensive treatment. Whilst such a change would achieve the results of 'making children unbeatable', I believe this would have some dangerous and far reaching social consequences:
"The Director of Public Prosecutions has stated that the removal of the reasonable chastisement defence would render any smack a criminal offence and that he could not give any guarantee that cases would not be brought to court" [Joint Committee on Human Rights, Minutes of Evidence, 19 May 2004]
The Attorney-General, Lord Goldsmith, is also on public record as saying that "if the defence of reasonable chastisement were to be removed, the use of moderate and reasonable physical punishment as a means of correction, including a single smack to a child – would be an unlawful assault and punishable by the criminal law".
"The effect of this would be 'to bring in the existing sanction, at least for common assault, which is six months' imprisonment maximum'." [HL Deb (2003-04) 5 July 2004, vol 663, col.561.]
Such a legal ban on the physical chastisement of children could lead to unnecessary police and social service investigations in families where children are at no risk of harm. This would have an enormously traumatic effect on those families, not to mention increasing the caseload of social workers resulting in insufficient attention being given to children who are suffering serious abuse.
Conclusion:
It is my opinion that where family privacy and parental responsibility are at stake, with far-reaching consequences, public policy should be pursued and legislation enacted only on the basis of rigorous objective evidence and not on the basis of ideological arguments, of the kind so readily promulgated by child right groups in the UK.
As can be seen from the few number of times the defence of 'reasonable chastisement' has been relied upon in the last 4 years, it is my opinion that the current law in England and Wales is fully compliant with the European Convention on Human Rights. It is also in harmony with the United Nations Convention on the Rights of the Child which requires states to protect children 'from all forms of physical or mental violence, injury or abuse' (Article 19). All such treatment is already prohibited by law! In conclusion, I would state that the balance found by English law is appropriate bearing in mind the limited resources of the Police and Social Services, and the importance of not severely disrupting family life unless it is truly necessary and the resources are in place to make amends for damage unduly caused by a strong state-interventionist approach.
Back to free law coursework
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
Was this useful to you?
Did you find this article useful? Was the content up-to-date or do you have something to add? Give us your feedback and we'll make this site even better for you to use!
