UK law is not consistent with the United Nations Convention on the Rights of the Child

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A quarter of a century after the signing of the United Nations (UN) Convention on the Rights of the Child (CRC) UK law and other laws internationally fall way short of properly protecting children as was agreed by the signatories to the convention 25 years ago. This week marked the 25th anniversary since the signing of the CRC on 20 November 1989 and although there has been significant progress since that time, there is still work to do both in the UK and overseas to ensure that children receive the protection that they deserve and are entitled to.

In the UK parents have not been explicitly prohibited from smacking their children. However, section 58 of the Children Act 2004 limited the use of the defence of reasonable punishment so that parents and those acting in loco parentis who cause physical injury to their children can no longer use the “reasonable punishment” defence where they are charged with assaults occasioning cruelty, actual or grievous bodily harm. The defence of “reasonable punishment” is only available to parents, or others acting in loco parentis (provided they are not expressly prohibited from using physical punishment, for example in schools), where the charge is one of common assault.

Physical punishment is prohibited in all maintained and full-time independent schools, in children’s homes, in local authority foster homes and early years provision. Section 58 of the Children Act 2004 limits the defence of reasonable punishment as follows:

(1) In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.

(2) The offences referred to in subsection (1) are –

a) an offence under section 18 or 20 of the Offences against the Person Act 1861 (c. 100) (wounding and causing grievous bodily harm);

b) an offence under section 47 of that Act (assault occasioning actual bodily harm);

c) an offence under section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under 16).

(3) Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.

(4) For the purposes of subsection (3) “actual bodily harm” has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861.

(5) In section 1 of the Children and Young Persons Act 1933, omit subsection (7).

Effectively, physical punishment is illegal if it leaves a mark on a child or an implement (such as a cane or belt) is used to physically punish the child. However, the law in the UK does not go so far as to make all forms of physical punishment illegal and it remains legal for parents to physically punish their child, for example in the form of smacking, provided no actual bodily harm is caused (effectively, provided a mark is not left).

In 2014, in the UK, it is illogical that a parent can hit a child aged under 18 but if that child were to hit another adult this may be considered illegal if the child were above the age of criminal responsibility.

Since the evidence against physical punishment of children appears to outweigh evidence to the contrary, the implications for health care professionals who are committed to evidence-based practice are fairly obvious: when working with families and communities, advice should be concentrated on developing interventions that empower parents to choose not to smack by helping them to develop effective strategies for dealing with stress and by raising self-esteem.

Regardless of whether there is a statistically significant association or not between deaths from child maltreatment and the legal corporal punishment situation in a particular country or state, if there is to be a reduction in the number of cases of child death from child abuse and the number of cases of child maltreatment, given the role that society has in protecting those children, this must begin from a stand-point of taking the moral high ground which is that it is unacceptable to physically punish children, whatever the circumstances, and that there are much more effective and appropriate punishments to administer.

Disciplining children must not involve physical violence against them – indeed so to do perverts one of the origins of the word discipline, that is to come from the Latin discipulus meaning pupil, to educate, to follow (from disciple) or to learn. To discipline children through physical violence merely serves to educate them that such violence is accepted and encouraged by society which may teach them to behave in this way as they grow older. This surely cannot be a society in which the majority of people would wish to live in the future.

The position of a society where physical punishment of children is permitted yet child abuse is forbidden is not a tenable one. Reducing the number of cases of child abuse must begin with a clear message from society that physical punishment of children, whatever the circumstances, is unacceptable.

Either society must come to that conclusion itself and demand a change in the law or, if society cannot do this in a timely fashion, the law-makers in that society, in the form of Parliamentarians, must take the brave decision that, despite some public opinion, the situation is serious enough to introduce aspirational legislation to ban physical punishment of children with the aim of modifying behaviour within society – even if that is way into the future.

Although the law is best seen as enforcing what a society is prepared to accept as appropriate conduct and whilst caution must be exercised when introducing aspirational legislation which may not have the immediate support of a significant number of members of society, the situation for children at risk of significant harm is serious enough to warrant legislative change in a number of jurisdictions, including here in the UK.

Physical punishment of children violates international human rights law. A quarter of a century ago, in 1989, the Human Rights of Children were recognised internationally when the United Nations Convention on the Rights of the Child was signed by world leaders.

Article 19 of the UN CRC states:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Physical punishment of children is clearly counter to the UN CRC which confers absolute protection for children against violence while in the care of parent(s), guardian(s) or any other person.

That this convention has almost universal ratification is a testament to the importance placed on children’s rights worldwide. It is deeply worrying, therefore, that Somalia and the USA have still failed to ratify the treaty. Accompanying the Convention are two optional protocols, one on children in armed conflict and one on the sale of children, child prostitution and child pornography which ought, also, to be ratified by those states that have not yet so done.

Within Europe the Council of Europe, Parliamentary Assembly Recommendation 1666 (2004) has stated that:

The Assembly considers that any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. Striking a human being is prohibited in European society and children are human beings. The social and legal acceptance of corporal punishment of children must be ended.

Section 58 of the Children Act 2004 is clearly inconsistent with Article 19 of the United Nations Convention on the Rights of the Child as surely any physical punishment of a child constitutes physical violence and should, within our own legislative system, be classified as at least Common Assault.

An offence of Common Assault is committed when a person either assaults another person or commits a battery. An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force. A battery is committed when a person intentionally and recklessly applies unlawful force to another.

In October 2008 the UN Committee on the Rights of the Child stated in its concluding observations on the UK that, “The committee is concerned at the failure of the State party to explicitly prohibit all corporal punishment in the home and emphasises its view that the existence of any defence in cases of corporal punishment of children does not comply with the principles and provisions of the Convention, since it would suggest that some forms of corporal punishment are acceptable”.

The continued legality of physical punishment of children in the UK, and other countries, is a serious violation of the Convention on the Rights of the Child. Until the UK revises Section 58 of the Children Act 2004 and makes explicitly clear, in law, that physical punishment of children is illegal in all circumstances, even if it does not leave a mark, the UK will remain non-compliant with the UN Convention on the Rights of the Child and children living in the UK will not be afforded the protection from physical violence that they deserve and need.

Although it is ten years old, paragraphs 154-156 of this make interesting reading: 

In this landmark year for the UN Convention on the Rights of the Child Section 58 of the Children Act 2004 should be revised, and other legislation introduced as necessary, to make explicitly clear that there is no defence of “reasonable punishment” and that any corporal or physical punishment of a child, aged under 18 years of age, is strictly prohibited in law.

Until that happens UK law won’t be consistent with the UN Convention on the Rights of the Child and children living throughout our country will not be protected in the way that was intended a quarter of a century ago.

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