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ALL WALES PRACTICE GUIDE

Safeguarding children in relation to the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020

This practice guide is to be used from 21 March 2022, when the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 comes into force.

To be used in conjunction with the Wales Safeguarding Procedures

Who is this practice guide for?

This guide is primarily for practitioners working with children (up to the age of 18), their parents and carers or anyone acting in loco parentis1. This includes those working in early years, childcare, play provision, social care, education, health, the police, youth offending and youth, community and family support services (including the third sector) and foster care and residential care.

What is this guide for?

Safeguarding children is a responsibility shared by everyone in contact with children.

The Wales Safeguarding Procedures support individuals and agencies across Wales to understand their roles and responsibilities in keeping children and adults safe. They support a consistent approach to safeguarding practice and procedures.

This practice guide provides additional information about safeguarding responses where a child is affected by physical punishment. It should be used in conjunction with the Wales Safeguarding Procedures.

Effective safeguarding arrangements in every local authority area should be underpinned by two key principles:

There are some issues which are common across safeguarding practice guides and some which are specific to the safeguarding issue being considered:

What is physical punishment?

What is meant by physical harm under the Social Services and Well-being (Wales) Act 2014

What is changing?

The Children Wales Act received Royal Assent on 20 March 2020 and will come into force on Monday 21 March 2022.

Prior to 21 March 2022
Physical punishment has been illegal in schools, children’s homes, local authority foster care homes and childcare settings for some time. However if a parent, carer or individual acting in loco parentis in an unregulated setting (e.g. part time places of learning, worship, play and leisure) was charged with common assault whist looking after a child in their care, they could try to defend their actions by saying the punishment was reasonable. The defence of reasonable punishment is a defence to the existing common law offences of assault and battery7, for parents and those acting in loco parentis8 only and is not an absolute defence9. It is not available for any level of assault more serious than common assault, such as actual bodily harm.

From 21 March 2022
When Section 1 of the Children Wales Act comes into force, it will remove the defence of reasonable punishment. From this time all physical punishment of children will be illegal in Wales, including by parents, carers and anyone acting in loco parentis in any setting in Wales.

Removing the defence of reasonable punishment, makes it easier for children, parents and carers, practitioners and the public to understand the law. This will improve the ability of practitioners working with families to protect children by removing the current potential for confusion over what is an acceptable level of physical punishment. It will also mean that practitioners can provide clear, unambiguous advice to parents and carers that any level of physical punishment is illegal in Wales.

It will help protect children’s rights and send a clear signal that physically punishing children is not tolerated in Wales.

Why is the law changing?

Who will the law change apply to?

The Children Wales Act applies to anyone in Wales caring for children (under the age of 18 years) in their care. This may be the:

As with other laws it will also apply to visitors to Wales.

Physical punishment has been illegal in schools, children’s homes, local authority foster care homes and childcare settings for some time. Following this law change, all physical punishment of children in Wales will be illegal in all settings.

What actions by parents would or would not be acceptable once the defence is removed?

Evidence Base - Impact of physical punishment on children

Responding to Concerns

Members of the public
In line with the Wales Safeguarding Procedures members of the public have been advised through the awareness raising campaign that if they have concerns about an incident of assault on a child the report should be made as soon as possible to the Local Authority. If there are immediate concerns about a child’s safety they should contact the police.

Practitioners
Practitioners should continue to follow the Wales Safeguarding Procedures as normal.

A proportionate response

Children visiting Wales

Responding to incidents of assault on a child when they are reported to the police

After the Children Wales Act comes into force in the event of information being shared with the police or it coming to their attention, the police will continue to follow normal safeguarding and criminal justice procedures.

From 21 March 2022, when Section 1 of the Children Wales Act comes into force the police will continue to have responsibility for:

If the police receive a report that a child has been assaulted, they will decide what action to take, if any, based on the facts and individual circumstances of the case:

Out of Court Parenting Support Scheme

Appendices

Sources of information and support

Further information and background on the change in the law can be found here.

Information for parents and carers

Advice and support is available for parents and carers of children and practitioners should make them aware of their availability.

Information for children and young people

Meic is the helpline service for children and young people up to the age of 25 in Wales. From finding out what’s going on in the local area to help dealing with a tricky situation, Meic will provide confidential and non-judgmental information, advice and support:

The Children's Commissioner for Wales Investigation and Advice service is free and confidential. It’s there as a source of help and support if children and young people or those who care for them feel that a child’s been treated unfairly.

Childline is a free, private and confidential service where anyone under 19 can access support and advice. The Childline website www.childline.org.uk has information and advice pages:


1 Those acting in loco parentis refers is anyone who has responsibility for a child whilst the parent is absent.

2 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/175391/Munro-Review.pdf

3 Following the Wales Safeguarding Procedures (WSP). The WSP help practitioners apply the legislation Social Services and Wellbeing (Wales) Act 2014 and statutory safeguarding guidance Working Together to Safeguard People.

4 Following the Code for Crown Prosecutors and Charging Standard on Offences Against the Person which will be revised by the CPS to take account of the change in the law in Wales.

5 In the Children Wales Act physical punishment is defined as any battery carried out as punishment and referred to as “corporal punishment”.

6 working-together-to-safeguard-people-volume-5-handling-individual-cases-to-protect-children-at-risk.pdf (gov.wales)

7 Criminal Justice Act 1988, Section 39.

8 In unregulated settings.

9 The CPS charging standard explains the limits on its availability, and makes clear that even within those limits, the offending behaviour must be reasonable and moderate, taking account of factors such as the nature and context of the defendant’s behaviour, duration of the behaviour, physical and mental consequences in respect of the child, age and personal characteristics of the child, and reasons given by the defendant for administering the punishment.

10 Positive parenting refers to parental behaviour based on the best interests of the child that is nurturing, empowering, non-violent and provides recognition and guidance which involves setting of boundaries to enable the full development of the child (Council of Europe). It is about encouraging parents to make choices about the sort of parents they wish to be and adopting pro-active, positive approaches to managing their child’s behaviour.

11 United Nations Committee on the Rights of the Child (2006): Forty Second Session. General Comment No.8: The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment. Geneva: United Nations.

12 Wales Centre for Public Policy - Parental Physical Punishment: Child Outcomes and Attitudes

13 Physical punishment and child outcomes: a narrative review of prospective studies - The Lancet

14 A Community Resolution does not form part of an individual’s criminal record – However it may be disclosed as part of an enhanced DBS check. Acceptance of responsibility is required. Failure to comply with any of the conditions does not result in prosecution for the offence but the police may take this into account if the person offends again.

15 A Conditional Caution can be offered to a person who has admitted to committing the offence and where the police have sufficient evidence to charge. It forms part of a person’s criminal record. Failure to comply with any of the conditions may result in prosecution for the offence.