Page last updated at 18:07 GMT, Tuesday, 19 January 2010

The loophole that allows smacking in some schools

By Gary Eason
Education correspondent, BBC News

boy in classroom
The ban on corporal punishment has been extended in recent years

Smacking is banned in schools in the UK. Or is it?

In general terms, it is.

But concerns have been raised again in England about a clause that still permits corporal punishment in educational establishments that have children for less than 12.5 hours a week.

Schools Secretary Ed Balls has now said he does not think physical punishment should be tolerated in any learning setting in which trusted adults were supposed to be "looking after children, not abusing them".

But at present, it is.

The government-run Teachernet guidance website says: "Any form of physical punishment of pupils is unlawful as is any form of physical response to misbehaviour unless it is by way of restraint."

But this is not the whole story.

State funding

The law has evolved since the 1970s when two mothers, from Strathclyde and from Fife, complained to the European Court of Human Rights about their children being subjected to corporal punishment in state schools. Their complaint was upheld in 1982.

Parliament then passed the Education (No 2) Act which since 1987 has meant school teachers in schools that receive state funding have had no right to administer corporal punishment to pupils.

In 1993, in response to the decision of the European Court of Human Rights in another case, Parliament limited the severity with which corporal punishment could be administered at school to privately-funded children at independent schools.

This barred "inhuman or degrading punishment".

The ban on the use of all corporal punishment was extended to protect pupils in private schools in England and Wales from 1999, in Scotland in 2000 and in Northern Ireland in 2003.

Counting the hours

Where the loophole arises is in part-time establishments - or rather, a curious category of places that are "less than part-time", as it were, as defined by the law.

The Education and Skills Act 2008 tightened the definition of an independent educational institution to include those providing part-time schooling - for at least 12.5 hours a week for under-12s and 15 hours a week for children over 12, for at least 28 weeks during an academic year.

The then Schools Minister, Jim Knight, told MPs: "The requirement to register part-time institutions, which are not currently subject to any regulatory or monitoring framework, will ensure that these same safeguards are put in place for children in those settings.

"I am sure the committee agrees on the importance of ensuring that every child who is being taught in a school, full-time or part-time, should be safe and secure in their learning environment."

But establishments providing fewer hours' tuition - such as religious weekend schools - were still not covered.

In Scotland the government says it is not aware of the need for any change.

A spokesman said it would monitor any changes which took place in England and respond as required.

A spokesman for the Welsh Assembly Government was unaware of any similar problem.

"The Welsh Assembly Government firmly opposes physical punishment in all instances and, in particular, we support the campaign by the NSPCC to eradicate it," he said.

"Section 548 of the Education Act 1996 contains the law for England and Wales on corporal punishment in educational settings.

"We are aware of the review that Ed Balls has commissioned from Sir Roger Singleton and will await the outcome with interest."


The way the loophole operates is that the general prohibition on hitting children did not apply to their parents.

The Children Act 2004 made any punishment which caused "actual bodily harm" illegal too.

But otherwise parents have a defence of "reasonable chastisement" to the general charge of assault.

This extends into some schools because it also covers those who are "in loco parentis" (Latin for "in place of the parent"), a common law term that can cover a wide range of people.

School staff are normally considered to be in loco parentis - except that most educational establishments are specifically banned from using corporal punishment by the 1996 law.

But not the "less than part-time" ones.

Some MPs have proposed a new clause for an education Bill currently before Parliament.

This would mean that only a person with actual parental responsibility for a child could continue to justify battery of that child as "reasonable chastisement".

Meanwhile Mr Balls has asked the government's child safety adviser, Sir Roger Singleton, to report on the issue within a week.

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