In England and Wales, corporal punishment is lawful in the home under section 58 of the Children Act 2004, which provides for “reasonable punishment” of children. Although the Children Act 2004 removed the recourse to the “reasonable punishment” defence for any offence more severe than common assault, at the time the Crown Prosecution Service (CPS) Offences against the person Charging Standard specifically advised that where the victim was a child the threshold for defining common assault would be changed so that “other than reddening of the skin, the charge will normally be assault occasioning actual bodily harm”.
However in 2011, the Charging Standard was amended to state that a charge of assault occasioning actual bodily harm could only be brought if the injuries were serious; to determine the seriousness of the injury “relevant factors may include, for example, the fact that there has been significant medical intervention and/or permanent effects have resulted”. This means that for “less serious” injuries such as bruises, welts and cuts that do not require stitches, the “reasonable punishment” defence can be invoked, where previously the threshold was a “reddening of the skin”.
The CPS is now opening a consultation on the revised Offences against the person Charging Standard, which only applies in England and Wales. This provides an opportunity to highlight the inconsistency between the Government’s declarations and the current state of the law (see Note below) as well as the Government’s consistent refusal to abide by its international obligation to prohibit all corporal punishment in law. Under the Convention on the Rights of the Child, the UK must prohibit all corporal punishment of children, however light, in all settings of their lives. This means the defence of “reasonable punishment” must be removed.
The CPS has produced a draft revised Offences against the person Charging Standard. Comments are welcome and should be sent to Kwame.firstname.lastname@example.org by Thursday 27 July 2017. The finalised standards will then be published later this year.
The UK Government has repeatedly rejected recommendations to explicitly prohibit corporal punishment and to repeal the defence of “reasonable punishment”. In its national report to the Universal Periodic Review which took place in May 2017, and where the UK received a record seven recommendations on the prohibition of corporal punishment of children, it asserted that:
“The [UK Government] does not condone any violence towards children and has clear laws to deal with it. But parents should not be criminalised for giving a child a mild smack in order to control their behaviour. The “reasonable chastisement” defence is only available when the charge is one of common assault; it cannot be used when someone is charged with assault causing actual or grievous bodily harm, or with child cruelty.”