The law in this area has long been the subject of debate and providing a straightforward answer is no easy task. In principle smacking may not be classed as child abuse but, as is so often the case, context and extent must always be considered.
By way of example it is likely that an act of smacking or spanking that results in a child suffering “actual bodily harm” may indicate that an offence has been committed and in turn may be considered as an act of child abuse.
Under the terms of Section 58 of the Children’s Act 2004 the defense of “reasonable punishment” was in effect removed in circumstances where a parent or guardian is accused of offences involving, wounding, grievous bodily harm, assault occasioning actual bodily harm or cruelty to a person under the age of 16.
However the defense of reasonable punishment does remain in place in cases of common assault which resulted in causing bodily harm. The distinction lies in the definition of “Actual Bodily Harm” which is an offence under section 47 of the Offences Against the Person Act 1861.
The concept of actual bodily harm has been extensively considered in case law and can be described as any hurt or injury that interferes with the health or comfort of the victim. The hurt or injury caused does not necessarily need to be permanent, but must be more than merely transient. In other words if the injury is so trivial that it is of effectively no significance then the defense of reasonable punishment may still be said to apply.
The test then is whether the injury can be said to have been more than trivial or transient. That is likely to be a question of fact in any given case and the severity of injury will be a critical factor. When considering the seriousness of any injury caused, relevant factors may include the need for significant medical intervention and whether any permanent effects have resulted.
Spanking or smacking may be considered child abuse where the result is injury to the child of a more than trivial nature. Any actions that are carried out in such a way that result in cuts or bruising occurring cannot be justified on the basis that it was reasonable chastisement as that defense would not apply. However, where the injury to a child is such that there is no mark visible for longer than a few minutes then the defense of reasonable punishment may still be applicable.
Smacking and/or spanking will not in all cases be considered to constitute child abuse, it is perhaps more likely that a broader consideration of the facts and evidence will be needed to assess any individual case. Elements such as the frequency of smacking, the context for the punishment and the direct impact on the child amongst many others are factors that will be taken into account in a criminal court.