Home Office guidance wrongly suggested that smacking your children is always illegal, a judge has said before outlining the law on ‘lawful chastisement’.
The decision came after a father (C) was wrongly suspected of sexually assaulting his son (X) and a crime report was logged about him by Kent Police in March 2022. It later emerged that the father had merely been trying to toilet train his five-year-old son and the force took no further action in the case.
C applied to have the crime report about him deleted, but a civilian employee at Kent Police – following Home Office guidance – decided to instead reclassify it as ‘common assault’. The employee recorded 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.’
C sought judicial review of the decision to maintain a crime report, which he said the police could retain for 10 years and which would show up in enhanced DBS checks.
In the High Court this week, Mr Justice Julian Knowles said he had to ‘respectfully disagree’ with the Home Office guidance relied on by the police employee, pointing out some of it was ‘obviously wrong’.
One passage highlighted in court read: ‘Lawful chastisement of a child is a defence in law to a charge of assault, the assault has still been committed and a notifiable offence under the relevant category should be recorded.’
The judge pointed out that, in-fact, reasonable chastisement of children by parents or others in loco parentis is lawful at common law.
‘I am not concerned with any debate about the appropriateness, in 2024, 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’, the judge said. ‘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.
‘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 judge granted the judicial review and ordered the reference to common assault in the crime report be deleted.
This article is now closed for comment.
