Britain's legal systems are occasionally lampooned as being out of touch. The arcane language and the wigs and gowns suggest a system trapped in another century. And in the case of reasonable chastisement, it could be argued that this is not so far off the mark.
Reasonable chastisement is a legal defence spawned by an English court ruling made in 1860. The defence allowed parents to "inflict moderate and reasonable" physical punishment on their children "for the purpose of correcting what is evil in the child" and was later enshrined in the Children and Young Persons Act 1933.
Victorian values
Fast-forward to the present and the defence still stands with almost as much strength as it did in the reign of Queen Victoria. For many, however, the defence's continued existence is an affront to human rights and something that encourages violence against young people.
Bill Badham, development officer at The National Youth Agency, says: "By far the most common reason for young people running away from home is violence, and this defence justifies the hitting of young people with belts, slippers and other objects."
International human rights organisations have also been critical of reasonable chastisement. A 1998 ruling by the European Court of Human Rights concluded that the law does not give enough protection to young people.
On top of this, a recent survey by the Children are Unbeatable! alliance, a coalition of more than 400 organisations that want to see the defence removed, found 70 per cent of adults felt the reasonable chastisement defence should go.
So it is surprising, given such opposition, that the most recent attempt to ditch the defence died an uncomfortable death in the House of Lords two weeks ago (YPN, 26 May-1 June, p2).
Had it got through, the amendment would have abolished the concept of reasonable chastisement and introduced clear constraints on when a young person could be physically punished.
But instead of being added to the children bill, the amendment was dropped after education minister Baroness Ashton of Upholland said the Government opposed the measure because of concerns about its practicality.
"I do not dispute what noble Lords are trying to do, and I have enormous sympathy with their aim," she said.
"However, if the amendment would create uncertainty in the criminal justice system and social services, and make parents' position in relation to their child ambiguous, it would be difficult for the Government to allow a free vote."
She continued: "Consider the mum in the supermarket, whose child for the fifteenth time has taken the sweets off the shelf and put them in the trolley, and who says, 'If you do that again, I will slap your hand'. Would I wish the mother to be prosecuted if that happened? My answer would probably be no. We would be making her open to prosecution."
Badham says this argument is a cop-out: "It is of the utmost disgrace by adult policymakers, this trivialisation of violence towards young people. The police and Crown Prosecution Service are perfectly capable of dealing with extreme laws such as the Sexual Offences Act, which bans snogging between under-16s."
Others in the campaign are more pragmatic about the failure of the amendment.
Peter Mellew, co-ordinator of the Children are Unbeatable! alliance, insists: "This is not a negative decision. It will be tabled again at the children bill's next stage in Lords."
Kathy Evans, principal policy and practice manager at The Children's Society, agrees. "It would be a mistake to think that the Government's refusal to accept the clause at this stage means an end to the issue," she says. "It was not realistically expected that the Government would accept the clause at this stage. As members of the Children are Unbeatable! alliance, we are still hoping the Government will permit a free vote."
If the amendment is successful second time round, the children bill would spell the end for reasonable chastisement in both England and Wales, and, hopes Mellew, in the rest of the UK.
"Parts of the children bill already apply to Northern Ireland and so I expect that if progress is made, the removal of reasonable chastisement will be extended there," he says.
A good example
Mellew also thinks that success in Westminster would make the difference in Scotland, where the power to abolish the reasonable chastisement defence rests with the Scottish Parliament.
"The Scottish Parliament did reform the law, but in a completely hopeless manner," he adds. "But I am confident the Scottish Parliament would change Scotland's laws if reasonable chastisement is abolished elsewhere in Britain."
So it seems that the days of reasonable chastisement could be numbered.
The Government has gone as far as to agree to the principle behind its abolition, but seems stuck on how to remove the law without criminalising Baroness Ashton's "supermarket mum". But unless that legal quandary can be solved, the chances are reasonable chastisement will reach its 150th birthday intact.
WHAT IS "REASONABLE"?
Reasonable chastisement was created by a landmark court judgment made in 1860 after a 13-year-old was beaten to death. The ruling stated that a parent "may for purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment".
The defence was incorporated into legislation with 1933's Children and Young Persons Act. Teachers were also able to use the defence until the law was changed in 1998. The European Court of Human Rights has ruled that the defence breaches human rights.
