High Court Judge rules Home Office smacking guidance is wrong

Home Office guidance advising police officers that smacking is always illegal has been ruled incorrect by a High Court judge.

Commenting on a case involving the father of a seven-year-old boy, Mr Justice Julian Knowles said police had wrongly logged an “assault report” because they were following Home Office guidance.

The father launched a judicial review against Kent Police following the force’s refusal to delete the crime report, even though the case was dropped.

A civilian employee at Kent Police classified the case as ‘common assault’ and logged on the crime report: “The victim has also stated that the suspect smacks his bum when he is angry. This requires an assault report regardless of if it is deemed as lawful chastisement, the report is still required.”

The judge pointed out that this meant the crime report would be kept for at least ten years and would show up on enhanced DBS checks.

During the High Court hearing, Mr Justice Knowles said he had to “respectfully disagree” with the Home Office guidance used by Kent Police, and noted that some of it was “obviously wrong”.

His finding, he concluded, “throws doubt on [the Home Office’s] views as a whole in this area”.

He commented: “I am not concerned with any debate about the appropriateness… of parents lawfully being able to inflict physical pain on their children by way of punishment. That is for the UK’s respective parliaments to decide.”

He continued: “It was the wrong approach simply to conclude that because X had reported being smacked, a crime of assault had been committed by C on a balance of probabilities, which then had to be recorded, and that lawful chastisement was irrelevant.”

Mr Justice Knowles concluded: “I do not consider it to be the law of England that the gentlest of smacks administered by a parent to their child is the recordable crime of common assault until the parent is charged and proves otherwise at trial.”

The judicial review was granted and Kent Police was ordered to remove the crime report.

Currently parents in England are protected from being charged with assault if they smack their children under the ‘reasonable chastisement’ defence.

In Scotland and Wales however, it is a criminal offence for a parent to give their child a light tap on the back of the hand or leg as a form of discipline.

Parental smacking became illegal in Scotland in November 2020. Ahead of the law coming into force, the Scottish Government put out guidance encouraging the public to call the police if they see a parent smacking their child.

Wales outlawed parental smacking in March 2022.

Commenting on the bans in Scotland and Wales, a top criminal defence lawyer warned that parents could be put through “extremely upsetting and stressful” police investigations under a smacking ban.

In a blog for the Hickman & Rose law firm, Rose Commander explained that a smacking ban removes the ‘reasonable chastisement’ defence in law, leaving parents open to assault allegations and police investigations.

She said: “Regardless of its outcome, any investigation into an alleged assault on a child is likely to be extremely upsetting and stressful. For many people it will be the most traumatic thing to have happened to them. It may also have an impact on a suspect’s career and foreign travel.”

The Westminster Government has so far resisted calls to ban smacking in the UK.

Responding to a question about whether the Prime Minister at the time, Rishi Sunak, believed a smacking ban was needed, a spokesman said: “I think the PM would say that the law in England strikes the right balance between protecting children and maintaining the responsibility of parents to discipline their children appropriately and obviously within the boundaries of the existing law”.

The spokesman added: “Clearly any form of violence towards a child is completely unacceptable but we already have clear laws in place to prevent that.”