The Monkey Tree

We have all heard, or been involved in an argument at some point in our lives about whether we can or should smack our children.  Generally, the question is considered to be a moral one.  Those who believe in corporal punishment as a form of discipline for their children, fiercely argue “spare the rod, spoil the child.”  There seems to be no middle ground.  Those who don’t believe can often be seen in supermarkets scowling at irate parents that have tapped their child on the bottom for choosing an inopportune time to throw a tantrum.

But the question isn’t just a moral one, it is also a legal question, the answer to which is not always easy to define.

Is it a criminal offence to smack your child? First, we need to be clear on what “smacking” is.  If you hit your child with such force that a mark is left on their skin, such as a bruise or a cut, you could be prosecuted for physically abusing your child.   This, most would agree is straightforward and appropriate.

If however, you have smacked your child with minimal force, not causing a child to suffer any physical harm, then you have not, as matters presently stand, committed a criminal offence.

Periodically, political pressure to criminalise smacking raises in temperature.  To date, the government have refused to take away parents’ right to discipline their children in the manner in which they believe to be in their children’s best interests.

There is however another dimension to this question.  As most people know, there are two main strands to the British justice system.  Criminal law and civil law.

It is under the civil law that the Children Act 1989 was created, endeavouring to make clear parents’ rights and responsibilities to their children. 

As a parent you are responsible for ensuring that your child’s physical, educational and emotional needs are met.

These categories are fairly self-explanatory:

Physical needs:-  - your child needs to be housed, fed and kept safe.

Educational needs:- you must make sure that your child is being educated in some form, whether that be in an educational establishment, or by being educated at home.

Emotional needs:-  - your child needs to feel loved and secure.

Two of these categories relate to the smacking debate, most interestingly the emotional need category.

Within family proceedings, whether that be between parents, or care proceedings between social services and parents, it is widely accepted that if a child is smacked as a form of discipline, they may suffer emotional harm.

You may be surprised to hear, that if you smack your child for misbehaving and they inform their school teacher or other professionals, that professional could make a referral to social services, in fact, they have a duty to make a referral to social services which could in turn lead to an investigation being undertaken by social services of your parenting.

There have been many highly publicised cases involving social services over the last few years that highlight the difficulties that social services face when trying to strike a balance in this area.  When a child has been seriously physically injured, following numerous referrals to social services, that were not followed up on, there is an outcry as to why social services never stepped in earlier.

On the flip side, social services can appear draconian when they intrude on families who are genuinely trying to raise their children in a manner that they believe will lead to them growing into well-rounded adults.

This clearly blurs the lines as to what is an appropriate form of physical discipline and leads to the question of how social workers should view physical chastisement in all of its forms.

The area of child protection is a very complex one, which as a parent you may find daunting and confusing.  Clearly, the message has to be, think carefully about what form of discipline you use when chastising your children, and more importantly, why you use it.  For example, hitting a child to stop them from touching a hot kettle may be viewed very differently to hitting a child in anger or frustration.

If you require any advice on family or social services matters, please feel free to contact us at Sternberg Reed, Solicitors to arrange an appointment.  (See our advert on the opposite page).

Zoe McNess
Sternberg Reed Solicitors