The following is a guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written a number of posts for In Custodia Legis, including Welsh Legal History; FALQs: Brexit Referendum; and The UK’s Legal Response to the London Bombings of 7/7.
In March 2019, the Welsh government introduced the Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill. It created the bill after considering that
Research suggests physical punishment is no more effective than nonphysical approaches to discipline. There is no compelling evidence against the proposal to remove the defence of reasonable punishment. The majority of researchers in the field make the judgement that all physical punishment under all conditions is potentially harmful to children.
The bill does not create a new offense, but instead abolishes the common law defense of “reasonable punishment.” This defense currently applies only to parents and individuals acting in loco parentis who use corporal punishment against their children. Corporal punishment is defined as “any battery carried out as a punishment” against children in Wales. The Crown Prosecution Service (CPS) has issued guidance that states battery “is committed by the intentional or reckless application of unlawful force to another person.”
Section 1 of the bill specifically provides that “corporal punishment of a child taking place in Wales cannot be justified in any civil or criminal proceedings on the ground that it constituted reasonable punishment.” The bill also removes the grounds of acceptable conduct in civil and criminal proceedings for justifying corporal punishment of a child. The government has stated:
The Bill is intended to support children’s rights by prohibiting the use of physical punishment, through removal of this defence. The intended effect of the Bill, together with an awareness-raising campaign and support for parents, is to bring about a further reduction in the use and tolerance of the physical punishment of children in Wales.
It will apply to all individuals in Wales, including visitors.
The law places a duty on Welsh government ministers to take steps to promote public awareness of the changes in the law for two years before the provision removing the defense enters into force. Section 3 requires ministers to prepare two reports detailing the effects of the changes to the law. One of these reports must be prepared and published three years after section 1 of the bill enters into force and the second report must be prepared and published five years after section 1 enters into force.
While the bill itself is relatively short, spanning only six sections over two pages, the accompanying explanatory memorandum is over 97 pages long and notes:
Removing the defence will not interfere with the principles of the common law, which acknowledge that a parent can intervene physically, for example, to keep a child safe from harm, or help with activities such as tooth brushing.
If the law becomes operational, when the police receive reports or complaints that an adult has used physical punishment towards a child, they must investigate and decide whether to refer the case to the CPS. The CPS will then decide whether to prosecute using a number of factors, including if there is enough evidence, whether it is in the public interest, and best interests of the child to do so.
On January 28, 2020, the Welsh government agreed to the final text of the bill. The bill is now in the” stage four post process period,” which lasts four weeks, during which time the Counsel General or Attorney General can refer any questions to the Supreme Court regarding whether any provision of the bill, or the bill in its entirety, is within the area of legislative competence of the Welsh Assembly. The Secretary of State for Wales could also make an order that would prohibit the bill from being submitted for Royal Assent. If the bill passes through this stage, a two year education campaign will start on the day it receives Royal Assent, and then section 1 of the bill, which removes the defenses in cases of corporal punishment of a child, will enter into force.
Wales is not the first country to act to prohibit the use of corporal punishment on children. The first country in the world to introduce a complete ban prohibiting the use of corporal punishment was Sweden in 1979. In the UK, Wales follows Scotland, which enacted a similar ban in 2019. Wales will become the 61st jurisdiction worldwide to prohibit the use of corporal punishment on children in all settings.
Current Law on the Use of Corporal Punishment on Children
The use of corporal punishment has been progressively limited across the countries of the UK. Its use in public schools was prohibited by the Education Act (No. 2) Act 1986 and its use in private schools across the UK was prohibited by section 548 of the Education Act 1996, as amended by the School Standards and Framework Act 1998. Section 58 of the Children Act 2004 repealed section 1(7) of the Children and Young Persons Act 1933, and served to prohibit the use of physical punishment in children’s homes. The Children Act 2004 also limited the use of the defense of “reasonable punishment” in cases of wounding and causing grievous bodily harm; assault occasioning actual bodily harm; or cruelty to a child. The Children Act 2004 thus served to limit the defense of reasonable punishment to the offenses of common assault or battery, or in civil cases to the tort of trespass against a child. The CPS issued guidance that
clarified that an offence of assault or battery against a child can only be considered to be common assault where the injury is transient and trifling and amounts to no more than a temporary reddening of the skin – a more serious injury would indicate an offence of at least actual bodily harm for which the defence is not available.
The explanatory memorandum to the Welsh bill has noted that the CPS typically does not prosecute cases if they believe the defense will be successful, which resulted in cases where the defense is relied upon being fairly rare.
Legislative Competence
Until recently, Wales did not have the legislative competence to act in this area. The Wales Act 2017 amended part 4 of the Government of Wales Act 2006 and provided the National Assembly for Wales with the legislative competence to act in the area of disciplining of children. As part of the national strategy for Wales, Prosperity for All, the Welsh government pledged to introduce legislation to prohibit the physical punishment of children to protect children’s rights and provide consistency with the obligations contained in the, now thirty-year old, United Nations Convention on the Rights of the Child (UNCRC).