R v Hopley Revisited

The government recently rejected an amendment to the Children’s Wellbeing and Schools Bill which would remove the common law defence of ‘reasonable punishment’ available to parents and others acting in loco parentis in England, unless otherwise withdrawn by primary or secondary legislation (as it has been for childminders and early years workers, foster carers, children’s homes staff, teachers and prison officers). Similar legal defences were fully removed in Scotland in 2020 and in Wales in 2022.

Schools Minister Catherine McKinnell told cross-party MPs championing the amendment that the government is “open-minded” about whether to make such a “significant legislative change”, stating ministers wish first to review evidence from Wales which will be published at the end of 2025. She also said, “Abusive parents are caught under the existing legislative framework”.

On the very same day the Minister sought to reassure Parliament that current law sufficiently protects children, the High Court dismissed an appeal from a doctor struck off from the medical practitioners' register for sustained physical abuse of his five children. A central part of the appellant’s (anonymity was agreed to protect the children’s right to privacy) case was that his conduct towards his children had been lawful: he had not been prosecuted of any crime, and there is no prohibition per se of parents inflicting pain on their children. In making this argument, he relied upon the 1860 R v Hopley case – where a headteacher beat to death a boy with learning difficulties – which established the ‘reasonable chastisement’ defence. The appellant also invoked section 58 of the Children Act 2004 which removed the defence for actual bodily harm, grievous bodily harm and cruelty to children aged 15 and under but left it intact for common assault (in the process renaming the defence as ‘reasonable punishment’). 

Although he disputed that his behaviour brought the medical profession into disrepute, and he rejected concerns about how his beliefs about children and parenting could potentially impact on his professional child safeguarding responsibilities, the appellant did not deny that he had hit his children on their faces, hands and bottoms on a weekly basis for a period approaching seven years.

 He also admitted to travelling to Malaysia to purchase a special cane for the deliberate infliction of pain on the children’s bottoms and the soles of their feet (having been unable to acquire one in England).

 The appellant began hitting each child when they were around two years old. The Medical Practitioners’ Tribunal (‘Tribunal’) observed that he “accepted that, when caning the soles of his children's feet, the children would have to lie on the floor with their feet in the air and would on occasions have to be restrained… [He] caned the soles of their feet because using similar force on other parts of their bodies might leave marks”.

 As for what lay behind the father’s conduct, the Tribunal reported that he had said in oral evidence that “the motivation for smacking or caning was to discipline his children by inflicting pain. He stated that if the child was not sore as a result, then they would not fear the punishment. He accepted that smacking a cheek/cheeks was also humiliating for the child. He also explained that a cane was a better deterrent as he could warn the children that he would go and get his cane whereas it would not have the same effect if he were to have said he is going to use his hand”.

Whereas the Tribunal found the appellant’s treatment of his children to be abusive, and this course of conduct impaired his fitness to practise as a doctor, he submitted this was lawful chastisement – he had committed no crime. The police had investigated and decided not to prosecute.

Mr Justice Freedman upheld the Tribunal’s findings and additionally dismissed the grounds of appeal relating to Articles 8 and 9 of the European Convention on Human Rights, the right to respect for private and family life and the right to freedom of thought, conscience and religion respectively. These are qualified rights, and the court held the interference was justified for the protection of children (and other legitimate aims).  

The United Nations monitoring body for the Convention on the Rights of the Child – the Committee on the Rights of the Child – has consistently urged the UK to remove legal defences which condone and perpetuate violence against children. Its last review of the UK’s compliance with international children’s human rights law was in 2023, and the Committee recommended the explicit prohibition of corporal punishment “as a matter of priority”. More than 90 states have either completed law reform (67) or promised to change their laws (27) to give children the same protection from assault as adults. The Secretary of State for Education has described the Children’s Wellbeing and Schools Bill as “the single biggest piece of child protection legislation in a generation”. Time will tell whether the Bill succeeds through Parliament having left undisturbed a legal defence to violence against children fashioned in the 19th Century.