This blog post was originally published on The Safeguarding Company website >> https://www.thesafeguardingcompany.com/resources/blog/abolition-of-defence-of-reasonable-punishment/

CHILDREN (ABOLITION OF DEFENCE OF REASONABLE PUNISHMENT) (WALES) ACT 2020

From March 2022, the law in Wales has changed. The Children (abolition of defence of reasonable punishment) (Wales) Act 2020 now helps protect children’s rights by prohibiting the physical punishment of children.

This means physically punishing children is no longer acceptable in Wales and applies to anyone who lives in Wales and to all visitors to Wales.

The United Nations Convention on the Rights of the Child (UNCRC) is the basis for the policy and highlights the recognition of the right of the child to respect their human dignity, physical integrity and equal protection under the law.

The law was last reformed by Section 58 of the Children Act 2004 which had stopped the use of the ‘reasonable punishment defence’ for the charges of actual bodily harm or cruelty to a child.

The Children Wales Bill does not create a new criminal offence but will remove the current common law defence of reasonable punishment. This means that from March 2022, an adult cannot use the defence to assault or battery of reasonable punishment against a child. The removal of this defence will equally apply to both civil and criminal law.

The Bill was agreed by the Welsh Assembly Government on the 28th of January 2020.

WHAT IS THE EXPECTED IMPACT OF THE BILL?

If the police receive a report or a complaint that a child has been physically punished by an adult then the circumstances surrounding the incident will be investigated. A decision will then be made on what action to take, if any, based on the facts.

Cases referred to the Police and/or the Crown Prosecution Service will apply two tests:

1. Is there evidence to charge, and
2. Is it in the public interest to do so

They will also consider what is in the best interests of the child. It is therefore expected that not all smacking offences reported will be prosecuted due to the likely use of cautions, community resolution orders or other warnings by police that may be preferred to criminal charges. Cautions and orders may however show up on an enhanced disclosure and barring service check.

FACTS ABOUT THE BILL

• It does not create any new criminal offences
• Children in Wales will now be afforded the same legal protection from physical punishment as adults and their rights under the UNCRC will be upheld
• There will be no new individual policing of families or changes to social services thresholds for intervention
• The changes do not seek to criminalise parents for disciplining their children in a loving and caring way
• It will not affect ordinary parenting acts that involve physical contact, such as brushing teeth or hair or pulling a child to safety from a busy road or fireplace.

WHY THIS CHANGE IS IMPORTANT

The aim of the Act is to protect children's rights by prohibiting physical punishment of children thus giving children the same protection from assault as adults. research suggests that types of physical punishment could be harmful to children, so the Act focuses on reducing the use and tolerance of physical punishment of children in Wales. 

Different sectors in Wales should continue to refer to the Wales Safeguarding Procedures and its practice guides when dealing with incidents of physical punishment. Removing the defence of reasonable punishment will mean that practitioners across all sectors will be able to provide clear advice to parents and carers that any level of physical punishment is illegal in Wales. It is important to note that this law change only applies to Wales and will not change how organisations, such as schools, sports clubs or community groups, engage with local authorities or children's services. 

RESEARCH FROM OTHER COUNTRIES

In 1979, Sweden became the first country in the world to explicitly ban corporal punishment of children. Other early adopters include Norway, Finland, Austria and Denmark. In 2000, Israel became the first non-European state to ban smacking.

In more recent years, countries in Africa, Latin America and Asia have joined the list of nations where corporal punishment is banned.

According to figures sourced from UNICEF, today there are sixty countries, states and territories that have adopted legislation that fully prohibit using corporal punishment against children.

Sweden is the only country that has been able to follow the effect of the ban with repeated studies using the same methodology over a 40 year period. Whilst 90% of Swedish adults smacked their children in the 1970s, less than 10% did so by 2000 and this has figure has continued to reduced in the last survey in 2016. For the majority of Swedish parents, smacking is not an option and is looked on as adverse behaviour.

Sweden also launched an unprecedented publicity campaign at the time of the introduction of the law and recent research indicates that such campaigns and follow-ups of the law are important as people in many countries continue to believe in the necessity of corporal punishment despite bans.

When the ban was introduced in Scotland, an implementation group was set up to understand what guidance was needed for the public on reporting incidents, whether additional parenting support is needed and how this could be provided and also how the impact of the legislation can be monitored. In response, Scotland had produced literature to support the introduction of the new Act by producing leaflets, factsheets and Q&A posters for children themselves. In addition as part of ongoing work to support parents they have published a campaign on coping with being a parent.

It is clear that the change in the law is not meant to stigmatise parents but empower them by educating them to understand physical punishment does not work and can harm children. Education and the right support for both parents and children will be paramount to the success of the new Welsh Children Bill.

RESOURCES / ADVICE 

• Parenting. Give it time offers positive parenting practical hints, tips and expert advice to encourage good behaviour from children and alternatives to physical punishment. Their parenting support page offers links to further support and helplines.
• Universal parenting support and advice is provided by midwives, health visitors, GPs and Family Information Services. 
• Early help programmes such as Flying Start (if you live in a Flying Start area) and Families First.