21 March 2022
From today, children in Wales enjoy the same legal protection from corporal (physical) punishment as adults.
The Children (Abolition of Reasonable Punishment) (Wales) Act was passed by the Senedd in January 2020 after years of debate and campaigning. It comes into force following two years of preparation and publicity by the Welsh Government to ensure people know and understand the changes.
No longer can the defence of ‘reasonable punishment’ be used to justify anyone, including parents, inflicting corporal punishment on a child in Wales.
‘Corporal punishment’ is defined in the Act as ‘any battery carried out as punishment’. Battery is unlawful under both civil and criminal law and means any touching that goes beyond acceptable conduct. Under the Act, no-one can argue that corporal punishment is acceptable conduct.
With this simple formula the Senedd has abolished in Wales the last remnants of a law created by judges in times when children were seen as their parents’ property, to do with what they will, and when beating children was a common mode of discipline. It is worth remembering that in 1860, after an ‘obstinate’ schoolboy died from a protracted beating, an English court, whilst finding this could amount to manslaughter, reaffirmed that it was lawful to inflict corporal punishment ‘for the purpose of correcting what is evil in the child’. (R v Hopley (1860)).
A century after R v Hopley, in a succession of cases before the European Court of Human Rights, there began a progression in thinking about the extent to which parental choice could justify corporal punishment. In the UK, legislation in the late 20th and early 21st centuries incrementally outlawed corporal punishment in schools and then reduced the scope of the defence in other settings to cases in which ‘only’ minor injury was inflicted.
However, it was the human rights bodies, including but not only the UN Committee on the Rights of the Child, that called out the defence for being incompatible with multiple human rights treaty obligations. Put simply, if children are human, and have human rights, then children must have equal protection under the law for those rights. Different treatment of children under the law can be justified only if conducive to or at least compatible with their rights, and corporal punishment cannot be so justified.
It is for this reason that this small change in the law is of such totemic importance. As former Presiding Officer Lord Dafydd Elis-Thomas put it, in a debate on abolition of the defence in 2011, the reform is a necessary consequence of seeing children as citizens: not as ‘citizens in the making, some sub-species of citizen, or citizens to be treated differently, either ethically or legally, to other citizens’. (Record of Proceedings, NAW, 19 October 2011)
It has taken time, and there have been several attempts to push forward the reform, championed by elected members of different political parties urged on by untiring NGO lobbying. With what seemed to campaigners an excess of caution, the Welsh Government took time to gauge public perceptions before introducing the reform to the Senedd.
But with the passing of the 2020 Act, Wales joined 60 countries across the world, including Scotland, that have taken this essential step towards recognition of the humanity of children.
Blog written by: Professor Jane Williams, Joint Coordinator of the Observatory on Human Rights of Children
Information from Welsh Government on the change to the law