Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020

Last updated

Act of the National Assembly for Wales
Royal Badge of Wales (2008).svg
Long title An Act of the National Assembly for Wales to abolish the common law defence of reasonable punishment in relation to corporal punishment of a child taking place in Wales; and for connected purposes.
Citation anaw 3
Introduced by Julie Morgan AM
Territorial extent Wales
Dates
Royal assent 20 March 2020
Commencement 21 March 2022
Status: Current legislation
History of passage through Parliament
Text of statute as originally enacted

The Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 (anaw 3) (Welsh : Deddf Plant (Diddymu Amddiffyniad Cosb Resymol) (Cymru) 2020) is an Act of the National Assembly for Wales that was given royal assent on 20 March 2020. It was introduced to the Assembly in March 2019 [1] by Julie Morgan AM and passed on the 28 January 2020. It was first detailed in February 2019 by way of an Explanatory Memorandum. [2]

Contents

Context

The bill followed the Scottish Parliament's passage in 2019 of the Children (Equal Protection from Assault) (Scotland) Act 2019, and means people in Wales (as in Scotland) will be banned from smacking their children. [3] The law was last reformed by Section 58 of the (England and Wales) 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 Guardian described the Bill upon passage as the "first divergence of core criminal law between Wales and England", [4] with the newspaper citing concerns from holidaying English visitors who may now fear prosecution for punishing their children while in Wales. [4] There are no current plans to introduce bans in Northern Ireland or England. [4]

Commencement

The Bill was agreed by the Assembly on 28 January 2020. [5] It became an Act following Royal Assent. [6] The law has taken effect on 21 March 2022. [7] [8]

The Act abolishes the common law defence of "reasonable punishment" set out in the case of R v Hopley [1860] 2F&F 202. [9]

The Act does not introduce a new offence of assault against a child, instead relying on continued prosecution using existing common law offences against the person. [3] As a result, no offences will be charged on the basis of the Act; instead, existing prosecutions will be considered without the issue of a "reasonable punishment" defence. [3] The existing Crown Prosecution Service guidance that injuries must exceed "temporary reddening of the skin" will no longer be considered in cases. [3]

Political debate

The deputy social services minister Julie Morgan proposed the new law after years of breaking the Labour whip on the issue. Under former First Minister Carwyn Jones, Labour had previously opposed a ban on smacking, however his successor Mark Drakeford (a former social worker) has been an advocate of reform.

The Labour Party whipped in favour of the Bill when brought to a final vote, while the Conservative Party allowed a free vote on the legislation. Conservatives David Melding and Angela Burns both supported the Bill, but Janet Finch-Saunders in particular was an opponent. Brexit Party group leader Mark Reckless said "the time was not right to legislate", while Helen Mary Jones of Plaid Cymru praised the decision as closing "an outdated loophole (which) finally gives children in Wales the same legal protection from assault as adults." [3] Brexit Party AM Mandy Jones was vocal in her opposition to the bill. She spoke in the chamber about the physical and emotional abuse she suffered from her adopted mother. [10] Drakeford also commented on the ban stating “I’m proud Wales has taken this step and once again put children’s rights at the heart of what we do here." explaining his view that “Times have changed and there is no place in a modern society for the physical punishment of children." [4]

Supporters of a ban across the UK include the Children's Commissioners for Wales, Scotland, England and Northern Ireland, [3] while opponents have included the Be Reasonable campaign and evangelical Christian groups. [3]

Impact

After researching similar reforms in New Zealand, the Welsh Government expects 38 prosecutions over five years, [3] however the CPS has indicated the real number of prosecutions will be lower. [3] Police figures commented that despite the reform, not all smacking offences reported will be prosecuted, [3] due to the likely use of community resolution orders, cautions, or other warnings by police may be preferred to criminal charges. Cautions and orders could however show up on enhanced Disclosure and Barring Service checks. [3]

See also

Related Research Articles

<span class="mw-page-title-main">Assault</span> Physical or verbal attack of another person

An assault is the illegal act of causing physical harm or unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. Additionally, assault is a criminal act in which a person intentionally causes fear of physical harm or offensive contact to another person. Assault can be committed with or without a weapon and can range from physical violence to threats of violence. Assault is frequently referred to as an attempt to commit battery, which is the deliberate use of physical force against another person. The deliberate inflicting of fear, apprehension, or terror is another definition of assault that can be found in several legal systems. Depending on the severity of the offense, assault may result in a fine, imprisonment, or even death.

<span class="mw-page-title-main">Convention on the Rights of the Child</span> International treaty about the rights of children

The United Nations Convention on the Rights of the Child is an international human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The convention defines a child as any human being under the age of eighteen, unless the age of majority is attained earlier under national legislation.

<span class="mw-page-title-main">Abortion in the United Kingdom</span>

Abortion in the United Kingdom is de facto available under the terms of the Abortion Act 1967 in Great Britain and the Abortion (No.2) Regulations 2020 in Northern Ireland. The procurement of an abortion remains a criminal offence in Great Britain under the Offences Against the Person Act 1861, although the Abortion Act provides a legal defence for both the pregnant woman and her doctor in certain cases. Although a number of abortions did take place before the 1967 Act, there have been around 10 million abortions in the United Kingdom. Around 200,000 abortions are carried out in England and Wales each year and just under 14,000 in Scotland; the most common reason cited under the ICD-10 classification system for around 98% of all abortions is "risk to woman's mental health."

<span class="mw-page-title-main">Senedd</span> Devolved parliament of Wales

The Senedd, officially known as the Welsh Parliament in English and Senedd Cymru in Welsh, is the devolved, unicameral legislature of Wales. A democratically elected body, it makes laws for Wales, agrees to certain taxes, and scrutinises the Welsh Government. It is a bilingual institution, with both Welsh and English being the official languages of its business. From its creation in May 1999 until May 2020, the Senedd was officially known as the National Assembly for Wales and was often simply called the Welsh Assembly.

<span class="mw-page-title-main">Capital punishment in the United Kingdom</span> History of the death penalty in the UK

Capital punishment in the United Kingdom predates the formation of the UK, having been used within the British Isles from ancient times until the second half of the 20th century. The last executions in the United Kingdom were by hanging, and took place in 1964; capital punishment for murder was suspended in 1965 and finally abolished in 1969. Although unused, the death penalty remained a legally defined punishment for certain offences such as treason until it was completely abolished in 1998; the last execution for treason took place in 1946. In 2004, Protocol No. 13 to the European Convention on Human Rights became binding on the United Kingdom; it prohibits the restoration of the death penalty as long as the UK is a party to the convention.

<span class="mw-page-title-main">Hunting Act 2004</span> United Kingdom legislation

The Hunting Act 2004 is an Act of the Parliament of the United Kingdom which bans the hunting of most wild mammals with dogs in England and Wales, subject to some strictly limited exemptions; the Act does not cover the use of dogs in the process of flushing out an unidentified wild mammal, nor does it affect drag hunting, where hounds are trained to follow an artificial scent.

Chastisement is the infliction of corporal punishment as defined by law.

<span class="mw-page-title-main">Homicide Act 1957</span> United Kingdom legislation

The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice, reforming the partial defence of provocation, and by introducing the partial defences of diminished responsibility and suicide pact. It restricted the use of the death penalty for murder.

<span class="mw-page-title-main">Sexual Offences Act 1967</span> United Kingdom legislation

The Sexual Offences Act 1967 is an act of Parliament in the United Kingdom. It legalised homosexual acts in England and Wales, on the condition that they were consensual, in private and between two men who had attained the age of 21. The law was extended to Scotland by the Criminal Justice (Scotland) Act 1980 and to Northern Ireland by the Homosexual Offences Order 1982.

<span class="mw-page-title-main">Crimes (Substituted Section 59) Amendment Act 2007</span> New Zealand law concerning corporal punishment

The Crimes Amendment Act 2007 is an amendment to New Zealand's Crimes Act 1961 which removed the legal defence of "reasonable force" for parents prosecuted for assault on their children.

<span class="mw-page-title-main">LGBT rights in Scotland</span>

Lesbian, gay, bisexual, and transgender (LGBT) rights in Scotland are generally in line with the rest of the United Kingdom, which have evolved extensively over time and are now regarded as some of the most progressive in Europe. In both 2015 and 2016, Scotland was recognised as the "best country in Europe for LGBTI legal equality".

<span class="mw-page-title-main">Crimes Act 1961</span> Act of Parliament in New Zealand

The Crimes Act 1961 is an act of New Zealand Parliament that forms a leading part of the criminal law in New Zealand. It repeals the Crimes Act 1908, itself a successor of the Criminal Code Act 1893. Most crimes in New Zealand are created by the Crimes Act, but some are created elsewhere. All common law offences are abolished by section 9, as are all offences against acts of the British Parliaments, but section 20 saves the old common law defences where they are not specifically altered.

<span class="mw-page-title-main">Corporal punishment in the home</span> Form of punishment used by parents to inflict physical pain or discomfort

Physical or corporal punishment by a parent or other legal guardian is any act causing deliberate physical pain or discomfort to a minor child in response to some undesired behavior. It typically takes the form of spanking or slapping the child with an open hand or striking with an implement such as a belt, slipper, cane, hairbrush, paddle, whip, or hanger. On a looser definition, it can also include shaking, pinching, forced ingestion of substances, or forcing children to stay in uncomfortable positions.

In Ireland, "publication or utterance of blasphemous matter", defamatory of any religion, was a criminal offence until 17 January 2020. It was a requirement of the 1937 Constitution until removed after a 2018 referendum. The common law offence of blasphemous libel, applicable only to Christianity and last prosecuted in 1855, was believed to fulfil the constitutional requirement until a 1999 ruling that it was incompatible with the constitution's guarantee of religious equality. The Defamation Act 2009 included a provision intended to fill the lacuna while being "virtually impossible" to enforce, and no prosecution was made under it. The 2009 statute increased controversy, with proponents of freedom of speech and freedom of religion arguing for amending the constitution. After the 2018 constitutional amendment, a separate bill to repeal the 2009 provision and residual references to blasphemy was enacted in 2019 by the Oireachtas (parliament) and came into force in 2020. The Prohibition of Incitement to Hatred Act 1989, which includes religion among the characteristics protected from incitement to hatred, remains in force.

<span class="mw-page-title-main">Mark Drakeford</span> First Minister of Wales from 2018 to 2024

Mark Drakeford is a Welsh politician who served as First Minister of Wales and Leader of Welsh Labour from 2018 to 2024. He previously served in the Welsh Government as Cabinet Secretary for Finance from 2016 to 2018 and Minister for Health and Social Services from 2013 to 2016. Drakeford was first elected as the Member of the Senedd (MS) for Cardiff West in 2011 and is considered to be on the soft left of Labour.

In England and formerly in Wales, battery punishment by parents of their minor children is lawful by tradition and explicitly under common law by R v Hopley [1860] 2F&F 202 :

By the law of England, a parent ... may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.

The legality of corporal punishment of children varies by country. Corporal punishment of minor children by parents or adult guardians, which is intended to cause physical pain, has been traditionally legal in nearly all countries unless explicitly outlawed. According to a 2014 estimate by Human Rights Watch, "Ninety percent of the world's children live in countries where corporal punishment and other physical violence against children is still legal". Many countries' laws provide for a defence of "reasonable chastisement" against charges of assault and other crimes for parents using corporal punishment. This defence is ultimately derived from English law. As of 2024, only three of seven G7 members including seven of the 20 G20 member states have banned the use of corporal punishment against children.

<span class="mw-page-title-main">Federalism in the United Kingdom</span> Proposed constitutional reform of a division of powers

Federalism in the United Kingdom aims at constitutional reform to achieve a federal UK or a British federation, where there is a division of legislative powers between two or more levels of government, so that sovereignty is decentralised between a federal government and autonomous governments in a federal system.

<span class="mw-page-title-main">Children (Equal Protection from Assault) (Scotland) Act 2019</span> United Kingdom legislation

The Children (Scotland) Act 2019 was an Act of the Scottish Parliament that outlaws the use of corporal punishment on children.

<span class="mw-page-title-main">Welsh devolution</span> Transfer of legislative power to Welsh authorities from UK government

Welsh devolution is the transfer of legislative power for self-governance to Wales by the Government of the United Kingdom.

References

  1. "Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill (As Introduced)" (PDF). National Assembly for Wales. 25 March 2019. Archived (PDF) from the original on 5 February 2020. Retrieved 30 January 2020.
  2. "Children (Abolition of Defence of Reasonable Punishment) Bill Explanatory Memorandum" (PDF). National Assembly for Wales. 1 March 2019. Archived (PDF) from the original on 30 January 2020. Retrieved 30 January 2020.
  3. 1 2 3 4 5 6 7 8 9 10 11 "Wales to bring in smacking ban after assembly vote". BBC News. 28 January 2020. Retrieved 30 January 2020.
  4. 1 2 3 4 Morris, Steven (28 January 2020). "Wales to ban parents smacking their children from 2022". The Guardian. ISSN   0261-3077 . Retrieved 30 January 2020.
  5. "Children (Abolition of Defence of Reasonable Punishment) Bill" (PDF). National Assembly for Wales. Retrieved 24 December 2019.
  6. "Historic Act enables voting for 16 and 17 year olds – renames Assembly to "Welsh Parliament"". Wrexham.com. 16 January 2020. Archived from the original on 16 January 2020. Retrieved 15 November 2020.
  7. "Ending physical punishment of children". GOV.WALES. Retrieved 5 February 2022.
  8. "Wales introduces ban on smacking and slapping children". the Guardian. 21 March 2022. Retrieved 21 March 2022.
  9. "R v Hopley". www.e-lawresources.co.uk. Retrieved 30 January 2020.
  10. "AM's 'nightly beatings' by adoptive mother". BBC News. Retrieved 23 December 2019.