Ministers in the Labour Government suggested in correspondence that only “mild smacking” would be protected by section 58. This is untrue. Although the Crown Prosecution Service Charging Standards advise that where the victim is a child trivial and transitory injuries should be treated as common assault while any injury more serious should be charged as actual bodily harm (ABH) for which the “reasonable punishment” defence is not available. However this does not deal with punishments which cause pain but not injuries – for example a common assault could include forcing children to sit or stand in a painful position, making them eat unpleasant things like soap or chili, pulling their hair or even, according to Court of Appeal judges, giving them a kick, so long as they are not bruised or physically injured. In addition, assaults that risk serious injury but do not actually cause it, like blows to the head, ears, kidneys or genitals, are common assaults, as are assaults that cause intense humiliation or emotional damage but no injury (for example ritual or public punishments, or hitting older children on naked buttocks). Frequency of smacking is also not a consideration for determining the difference between common assault and actual bodily harm, so children can be smacked many times a day with impunity. In short, as an attempt to draw a line between acceptable and unacceptable forms of physical punishment, section 58 plainly fails. The Scottish attempt, introducing the concept of “justifiable assault” is equally inadequate – for example it does not outlaw punishment that causes bruising or other injuries causing actual bodily harm.
The vagueness of section 58 is confirmed by the Government-sponsored booklet for parents Being a parent in the real world (2009). This states: “It is also important to be aware that even if a parent causes no actual injury to a child, some acts such as shaking a child, dragging a child by their hair, using a belt, cane, slipper or other implement may [our emphasis] not be accepted by the courts as ‘reasonable punishment’.” Thus official guidance confirms that perpetrators are able to raise the defence for such treatment and that it would be up to the courts to decide whether this was reasonable or not.
There have been virtually no prosecutions involving section 58 since its implementation, which appears to be a testament to the difficulty of taking such cases rather than the absence of “unreasonable” physical punishment.In 2007 the Crown Prosecution Service (CPS) reviewed the small number of cases in which physical punishment was involved after section 58 had come into force. Of seven cases, in at least four the defence of reasonable punishment had been raised but in all of these cases the defendant avoided conviction, five by a finding of not guilty and two because the prosecution was discontinued. None of the cases was about minor smacks: the child victims are alleged to have been slapped around the head, made to eat soap, smacked on the naked bottom by a non-relative, pinned down by the neck, bruised on the arm, punched and strangled. While it is not clear whether in all these cases the defendant got off through use of the “reasonable punishment” defence under section 58, it is clear that it is alarmingly difficult to get a conviction in British courts for serious assaults on children which are inflicted in the name of physical punishment.
Between summer 2007 and spring 2009 the Crown Prosecution Service reported that it had undertaken a second survey and found that there had been no recorded cases at all involving section 58. The UK Government argued that the absence of cases showed that the law was working well. This is baffling: did it take this to mean that there were no instances during that period where children were physically punished “unreasonably”? Such an assumption stretches credulity given the prevalence of severe physical punishment. It is surely more logical to conclude from the absence of cases that section 58 is a weak law, failing to prevent parents from overstepping the limits and making it difficult to failing to prosecute those that do.
Other reasons why section 58 provides an inadequate protection for children include:
- It is for the prosecution, not the defence, to prove that a common assault of a child was not “reasonable punishment”. In addition, the Charging Standards referred to above are guidance only, with a wide discretion given to prosecutors to decide how or whether to charge a particular case.
- Anyone acting in loco parentis can use the defence for a common assault on a child, regardless of the parents’ wishes in the matter unless they are explicitly prohibited in law. Those who are prohibitedfrom using physical punishment include:
Teachers and other employees in full-time education
Local authority foster parents
Staff in children’s homes
Staff in secure training centres and young offender institutions
Staff in early years’ provision
Those who are legally entitled to use the defence of “reasonable punishment” (and who are not prohibited from using physical punishment under civil regulations) include:
Private foster carers
Teachers providing under 12½ hours education a week – for example sports coaches, Sunday school or madrassa teachers, music teachers and home tutors
Youth workers and play workers
Staff in secure training centres
Staff in hospital wards and mental health units
Lodgers, baby-sitters, nannies, relatives, step-relatives and unmarried partners of parents.
This loophole was addressed in 2010 by Sir Roger Singleton, the Labour Government’s Chief Adviser on the Safety of Children who was asked by the Government to review policy following particular reports about physical punishments in madrassas, the part-time religious schools for Muslim children. Although Sir Roger found that the majority of all groups consulted thought either that all physical punishment should be banned or, failing an outright ban, thatonly parents and guardians should be allowed to use physical punishment, he did not recommend either of these options. Instead he recommended that any member of the child’s “household” should be entitled to use the defence, leaving it open for lodgers, baby-sitters, nannies, step-parents and parents’ sexual partners to physically assault children.
- While the defence of “reasonable punishment” is not permitted for offences of “child cruelty” (the word cruelty does not appear in the law) under section 1 of the Children and Young Persons Act 1933, it should be noted section 1 does not create an offence of strict liability. This means the prosecution has to prove a deliberate or reckless act (or failure to act). For example, ignorance or a genuine belief the punishment was benign are acceptable defences and “reasonable punishment” can still be put forward in explanation of the parents’ actions.
- Sentencing guidelines to courts, introduced in 2008, provide that where a parent is convicted of actual bodily harm, i.e. has caused more than transient and trivial injury, but intended “nothing more than lawful chastisement” they should get a light sentence, and if it can also be shown that the injury from the punishment was not reasonably foreseeable, then courts may consider a discharge the appropriate disposal.
 MA v Swansea, Court of Appeal 31 July 2009, Case No B4/2009/1068
 Section 51 of the Criminal Justice (Scotland) Act 2003
 CPS ref
 Ibid A. against the United Kingdom Judgment of 23 September 1998, Revised Memorandum of August 28 2008 (“Memorandum”) prepared by the Department for the Execution of Judgments of the European Court of Human Rights in the light of the developments since the adoption by the Committee of Ministers of Interim Resolution ResDH(2004)39 on 2 June 2004; CM/Inf/DH(2008)34; paragraphs 75-76
 Sir Roger Singleton Physical punishment: improving consistency and protection (2010) www.education.gov.uk/publications// eOrderingDownload/DCSF-00282-2010.pdf
 See Stone’s Justices’ Manual 2009 5-80, footnote 6 and Reasonable chastisement research report, Crown Prosecution Service, July 2007.
 Overarching principles: Assaults on Children and Cruelty to a child, Definitive Guidelines, Sentencing Guidelines Council, February 2008, paragraphs 13 and 14