Smacking children – the Lord Chancellor speaks

Chris Grayling, every lawyers least favourite politician, is in the news again for advocating smacking of children and new ‘tough’ prisons (I’m not sure what sort of prisons he’s been going to, but they’re not the holiday camp of the tabloids).

The ‘smacking’ comment has raised a few eyebrows and some approbrium from, among others, the NSPCC. But is it going to cause him any problems? He certainly won’t find himself up before the beaks. How do we know that? Well, here at UK Criminal Law Blog we have been given a secret copy of legal advice supplied to him by an anonymous barrister on that very point…

 

IN THE WESTMINSTER MAGISTATES COURT

RE: THE POSITION OF MR CHRIS GRAYLING

ADVICE

Introduction

  1. I am writing to advise Mr Grayling whether there is any possibility of him being prosecuted following his admissions in an interview that he used to smack his children.

Possible Offences

Common Assault

  1. The elements of Common Assault are set out in full here. Subject to the defence of reasonable chastisement (looked at below), it would seem that Mr Grayling is, as they say, ‘bang to rights’.
  1. However, the assaults all appear to have happened ten or more years ago. Common Assault is a summary only offence, and therefore s127 Magistrates’ Court applies. This means that Mr Grayling would have to be charged within six months of the offence. This time has clearly passed and therefore Mr Grayling is ‘in the clear’.

Child Cruelty

  1. This is an offence contrary to s1 Children and Young Persons Act 1933. It is an either way offence, with the maximum sentence being 10 years imprisonment.
  1. Someone will be guilty of this if they :
  • Are over 16
  • Have ‘responsibility for a child under 16’
  • Wilfully ‘assaults, neglects, ill-treats, exposes or abandons …’ that child
  • In a way likely to ‘cause him unnecessary suffering or injury to health’
  1. It is clear that Mr Grayling will satisfy the first two of those conditions.
  1. The case of Hatton [1925] 2 KB 322 (although it pre-dates the Act, it will still apply) determines that a Common Assault will not, of itself, be sufficient to amount to Child Cruelty. If there was any injury however, then this would be covered (it would also amount to an offence of ABH).
  1. ‘Ill treat’ is a much wider term and is not defined in the Act of Parliament. It is likely (see Archbold, the lawyer’s bible) that a series of Common Assaults (or even verbal bullying) could be covered by this. It would be a question of fact for the jury as to whether they felt the separate incidents, when taken together, could amount to ‘ill treatment’.
  1. The other ways of committing the offence will not be relevant here. Neglect relates to failing to provide food, shelter, medical treatment, etc to the child, and abandonment and exposure involve leaving a child to their fate.
  1. In any event, even if those are satisfied, the assault or ill-treatment would have to be done in a way that was likely to ‘cause him unnecessary suffering or injury to health’. This requires more than ‘a slight fright or some small mental anxiety’.
  1. This would also be a question of fact for the jury. It should be noted that the fact that no suffering or injury as described in the Act actually happened is not determinative of the issue.
  1. The NSPCC noted “Whilst parents are currently allowed to smack their children, the evidence is continuing to build that it is ineffective and harmful to children.” However, although it would be a matter for the jury, smacking in the sense described by Mr Grayling would be unlikely to be sufficient to fall into the category of harm described by the Act.

 

Defence of ‘Reasonable Chastisement’

  1. Whilst parents have been historically able to beat their children, this has become less and less acceptable over the last fifty years or so. They are however able to inflict on their child what would otherwise be a Common Assault on the grounds that what they were doing was ‘reasonable’ to punish their child.
  1. The current law (as of 15th January 2005) by virtue of s58 Children Act 2004 excludes the defence of reasonable chastisement from applying to ABH, GBH or Child Cruelty.

Sentence

  1. There are Sentencing Guidelines for this offence. The ‘sentencing table’ is set out at page 17.
  1. The maximum sentence in the Crown Court is 10 years imprisonment.

Conclusion

  1. For the above reasons, it seems to me very unlikely that Mr Grayling would be prosecuted for any offence.
  1. He would be well advised however to tone down his remarks in future. Not least because his recent behaviour and comments, along with his general attitude to lawyers will not endear him to a group of people he may need at some point.

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

4 thoughts on “Smacking children – the Lord Chancellor speaks

  1. John Allman

    This *is* a joke, isn’t it?

    Parents who do not punish their children when necessary, are being cruel to their children. Parents who punish their children more severely than necessary are also being cruel to their children. The minimum effective punishment that isn’t physical, is sometimes more severe than the minimum effective punishment that is physical. In such cases, the lesser physical punishment should be chosen, in preference to the equally effective, but more severe, non-physical punishment.

    My elder son, who will be 31 this year, said something funny the other day, when this topic came up in conversation. (His children, two of my seven my grandchildren, are similar in age to his younger half-brother, the youngest of my five children, who is nearly three, so we have cause to compare notes on discipline.)

    “Dad. I hate to tell you this, but your smacks don’t hurt.”

    Well, my smacks weren’t supposed to *hurt*. They were supposed to *communicate disapproval*. They *got the point across*, more effectively than words, facial expressions, withholding of pocket money, grounding, or any of the other punishments that must really piss off the children of some of the more modern parents nowadays, who are taken in by the absurd NSPCC party line, that smacks (even those that don’t hurt) amount to “violence” against children, which is simply absurd.

    The law seems about right, to me. It’s not a sensible topic for a political speech though.

    Every one of my five children has been different, and has needed a different approach to discipline. Some children never need a smack. from the day they are born, until their eighteenth birthday. Others are so naughty when they have an off day, that they have to be smacked in self-defence, or to defend other children. But I feel sorry for the child who *does* need a smack, who has parents who believe that smacking is always wrong, and who therefore dream up all sorts of other punishments that are far more cruel than smacking, especially as (as I have recently learnt from one of the “victims” I have always delivered), smacks that don’t hurt.

    Reply
  2. Dan Bunting Post author

    There’s certainly no suggestion that he would actually be prosecuted for this! You raise an interesting point though as to whether we, as a society, have moved too far.

    In reality, the occasional smack is not going to lead to a prosecution. The law is there to protect children from parents who strike out in anger (I think that that is another important distinction that you touch upon?) or who regularly use physical punishment unthinkingly.

    I agree that the law is about right now. I certainly think it was unwise for Grayling to go into it, there was no need to in an interview that he was seemingly giving about prison rehabilitation where it is not a topic that was being discussed. He seemed to want to create a controversy out of nothing …

    Reply
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