Physical punishment law and attitudes
NSPCC factsheet
December 2009
Our factsheet looks at the legal aspect of physical punishment and summarises the reasons why people are for or against it.
What is physical punishment?
What is the law on physical punishment as it affects parents and carers?
What is the law on physical punishment as it affects schools and teachers?
What do we know about attitudes towards physical punishment?
What has been the opposition to physical punishment?
Is physical punishment illegal in other countries?
What is physical punishment?
Physical punishment is the use of force inflicted on a child, usually as a corrective measure for dangerous or bad behaviour. This includes actions such as slapping on the leg, arm or hand with a bare hand; smacking on the bottom with a bare hand; slapping on the face, head or ears, or pinching.
The term 'physical punishment' covers both corporal punishment and smacking, both of which are broadly understood to represent the same level of violence.
What is the law on physical punishment as it affects parents and carers?
Assault of another person is an offence under sections 18 and 20 of the Offences Against the Person Act 1861.
Normally, where an adult assaults a child, age is considered an aggravating factor due to the vulnerability of the victim. If the police decide the assault constitutes common assault, then the parents may use the defence of 'reasonable punishment' under section 58 of the Children Act 2004.
If the police decide the assault constitutes the more serious offence of 'assault occasioning actual bodily harm' or 'grievous bodily harm', then the defence of reasonable chastisement is no longer available.
Scottish legislation about the physical punishment of children as it affects parents and carers can be found in Section 51 of the Criminal Justice (Scotland) 2003 Act. This gives the court the power to determine if a chastisement by a parent or carer was a 'justifiable assault', but stipulates that a blow to the head, shaking or using an implement never fall into that category.
References
Offences against the Person Act 1861.
Children Act 2004.
Section 51 of the Criminal Justice (Scotland) Act 2003.
Related links
Positive parenting (PDF, 40KB)
NSPCC policy briefing.
What is the law on physical punishment as it affects schools and teachers?
Section 131 of the School Standards and Framework Act 1998 explains the law regarding physical punishment in schools in England and Wales.
Physical punishment in state schools was made illegal under Section 47 of the Education Act 1986, but it was not until the 1998 act was passed that independent schools were included in the legislation.
All staff at educational establishments, including nurseries, are prohibited from using physical punishment against children. However, this does not remove the right of teachers to use force in certain specified circumstances, under the terms of Section 93 of the Education and Inspections Act 2006 (DFE, 2011).
If a person is employed by a parent privately – in the role of a nanny or childminder - the parents can give permission for them to use physical punishment, as long as the level of punishment does not constitute an offence (Children's Legal Centre).
Scottish legislation about the physical punishment of children as it affects schools and teachers is referenced in Section 51 of the Criminal Justice (Scotland) 2003 Act and can be found in Section 48a of the Education (Scotland) Act 1980 and Section 16 of the Standards in Scotland’s Schools etc. Act 2000. The latter clearly states that corporal punishment is not allowed under any circumstances.
References
Section 131 of the
School Standards and Framework Act 1998.
Section 47 of the
Education Act 1986.
Teaching and Higher Education Act 1998.
Section 93 of the
Education and Inspections Act 2006: Chapter 40.
Department of Education (2011)
Ensuring good behaviour in schools: use of reasonable force.
Children’s Legal Centre (2008)
The law on smacking children (PDF). University of Essex.
Section 51 of the
Criminal Justice (Scotland) Act 2003.
Section 48a of the
Education (Scotland) Act 1980.
Section 16 of the
Standards in Scotland’s Schools etc. Act 2000.
What do we know about attitudes towards physical punishment?
In 2007 the Minister for Children and the Department for Children, Schools and Families (DCSF, 2007a) published a review of the practical consequences of Section 58 (Children Act 2004), which relates to the use of the 'reasonable punishment' defence in alleged abuse cases. It was based on the views of professionals, parents and children.
The review found that smacking was becoming a less commonly used form of discipline. However, while many parents who answered the survey said that they would not use physical punishment on their own children, they would not like the law to change to make smacking illegal.
Approximately half of parents said that they did not like the idea of using physical punishment, but were prepared to if nothing else worked. Furthermore, a significant majority of the parents interviewed (85%) said that they believed that physical punishment such as smacking a child did not constitute physical abuse (DCSF, 2007b).
Even though Section 58 actually limits the availability of the 'reasonable force' defence, the survey identified that nearly half (47%) of practitioner respondents felt that this had done nothing to improve legal protection for children in cases of alleged assault by their parents (DCSF, 2007c). In fact, 76% felt that it had created more uncertainty among professionals, arising from& the need to distinguish between actual bodily harm and common assault.
Professional dissatisfaction with the legal status on the physical punishment of children has led to many organisations that work with children to call for a complete ban.
References
Department for Children, Schools and Families (DCSF) (2007a) Review of Section 58 of the Children Act 2004 (PDF). London: The Stationery Office.
Department for Children, Schools and Families (DCSF) (2007b) A study into the views of parents on the physical punishment of children (PDF). London: The Stationery Office.
Department for Children, Schools and Families (DCSF) (2007c) Section 58 of the Children Act 2004 Review (consultation); analysis of responses to the consultation document (PDF). London: The Stationery Office.
Related links
Review of Section 58 of the Children Act 2004 (Department for Education website)
What has been the opposition to physical punishment?
There has been opposition to physical punishment from a number of groups, including the NSPCC, many of whom are members of the Children are Unbeatable! Alliance. The alliance argues that the use of physical punishment is in contradiction to both European and international law, citing the United Nations Convention on the Rights of the Child (UNCRC).
The UNCRC requires that:
“Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse… while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” (Article 19)
It also states that:
"No child shall be subjected to torture or other cruel, inhumane or degrading treatment or punishment.” (Article 37)
The most recent attempt at changing the law in the UK was scheduled for 8 October 2008 in the House of Commons as part of the debate surrounding the Children and Young Persons Bill. However, this did not take place due to insufficient time in the chamber for the proposed debate and vote.
References
United Nations (1989)
Convention on the Rights of the Child.
Related links
Equal protection for children under the law on assault (PDF, 72KB)
NSPCC policy summary.
Children are Unbeatable! Alliance (website)
Is physical punishment illegal in other countries?
In 1979 Sweden became the first country to make all forms of physical punishment against children illegal. As of 2008, the Global Initiative to End All Corporal Punishment of Children has identified that there are 25 countries worldwide where corporal punishment is illegal in all settings.
The law on physical punishment of children and young people continues to provoke heated debate. The NSPCC will continue to campaign until all children receive the same protection as adults under the law against assault.
References
Countdown to universal prohibition (Global Initiative to End All Corporal Punishment of Children website).
Please note that this content is of a general nature, and may not represent a comprehensive review of the literature. Search the NSPCC Library catalogue for more publications.Contact the NSPCC Information Service for further information on physical punishment or any child protection topic
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