No corporal punishment ban for nearly 9,000 children in care

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In a letter to Article 39 this week, Children’s Minister David Johnston MP states children in care who live in supported accommodation – including bedsits, flats, shared houses and hostels – do not need the same legal protection from assault as those living in children’s homes or with foster families. The minister asserts this is because “it is extremely unlikely a court would consider that the responsibility to discipline a young person has been delegated to a supported accommodation provider or staff member”. He refers to the responsibility of local authorities to safeguard and promote the welfare of children in care.

Having discovered that corporal punishment and other forms of punitive discipline have not been prohibited in supported accommodation, Article 39’s Director, Carolyne Willow, wrote to the Education Secretary Gillian Keegan on 6 November, urging her to amend secondary legislation as a matter of urgency. The letter to the Education Secretary explained that corporal punishment had been banned in children’s homes in 1990 following widespread abuse. Local authorities are not allowed to use supported accommodation for children in care aged 15 and under, but it is now regulated for those aged 16 and 17. The majority of this type of accommodation is run for profit.

Corporal punishment was first prohibited (through secondary legislation) in children’s homes in 1990, following widespread revelations of sexual and physical abuse. The Independent Inquiry into Child Sexual Abuse, which concluded last year, has shone a bright light on the desperate legacy of violence within the children’s care system, and the interconnection between different forms of abuse. 

Extract from Article 39 letter to Education Secretary, 6 November 2023

Children’s Minister David Johnston MP replied to Article 39’s letter on 18 December, as the minister responsible for this area of policy.

Article 39’s Director, Carolyne Willow, said:

“I simply despair that we are having to fight for this basic protection. These are children in the care of the state, the majority of whom will have suffered years of abuse, neglect and trauma. They wouldn’t be in care unless they were highly vulnerable. Local authorities are paying companies to house and support children, and they are meant to follow individual care plans and placement plans. Providers are required to produce a behaviour management policy and staff have been empowered to use force on children both to prevent injury and serious property damage. It beggars belief that ministers believe staff are not acting in loco parentis.

“Even if the Department for Education’s legal analysis on corporal punishment is correct, and we strongly refute this, it would mean ministers have deliberately redesigned the children’s care system so that nobody has responsibility for parenting children where they actually live, so long as they are aged 16 or 17.

“Loving, engaged parents know just how much care, guidance and support teenagers need during this critical period of growing up. We have decades of research and testimony from adults who grew up in care feeling abandoned and isolated in their teenage years. Last week, the government proclaimed that love and stability is the goal of the children’s care system. You can’t have love and stability as a child if you have no-one looking after you.”

Around 9,000 children in care aged 16 and 17 live in supported accommodation – 41% of this age group looked after by local authorities. It is government policy that children living in this kind of accommodation do not require care or consistent adult supervision – that they are ready for independent living. Official statistics show that nearly one in ten children in these settings is disabled, and more than four in ten are unaccompanied asylum seeking children. At least a quarter of children are the subject of care orders, which means their local authority has parental responsibility for them.

Parents and others acting in loco parentis (Latin for ‘in place of parents’) who are charged with assaulting a child are able to rely upon the common law defence of ‘reasonable punishment/chastisement’. This was introduced in 1860 in a criminal case where a headteacher beat to death a 13 year-old child with learning difficulties. Lord Chief Justice Cockburn ruled that a parent (and those acting in the place of parents) could inflict corporal punishment on a child so long as this is “moderate and reasonable”.

The defence is not available for those charged with assaulting a child where corporal punishment has been expressly prohibited, as below.

Corporal punishment prohibition – England

  • Child prisons – banned in 1967
  • State schools – banned in 1987
  • Children’s homes – banned in 1990
  • Foster care – banned in 1991
  • Private schools – banned in 1998
  • Day care and childminding – banned in 2003

Freedom of information research by Article 39 in 2021 found that 64 local authorities in England had been notified of 334 allegations against adults working in supported accommodation in the preceding three years.

Article 39 is now seeking legal advice on challenging the government’s refusal to amend the secondary legislation.