Is It a Crime to Smack Your Child in Spain? The Right of Correction and Art. 153 CP

Yes: hitting your child can be a criminal offence in Spain even if it leaves no mark. Since Law 54/2007, the Spanish Civil Code no longer allows parents to correct their children «razonable y moderadamente» (reasonably and moderately), and Art. 153.2 CP punishes striking your own child or your partner’s child, even without injury, with three months to one year in prison or thirty-one to eighty days of community service. A conviction depends on the evidence, but the law no longer protects physical punishment, whatever the family’s nationality.

If you have been reported for hitting your child: what it means and what happens next

The complaint may come from the other parent, the school, the health centre or the child. Three key points:

• It is a public offence. The case goes on even if whoever reported it withdraws: in offences against minors affecting eminently personal legal interests, the victim’s forgiveness does not extinguish criminal liability (Art. 130.1.5 CP).
• It can move quickly. With a police report (atestado) and the suspect arrested or summoned to the duty court, the case can be dealt with as a fast-track trial (Art. 795.1.2 LECrim), and the judge can issue a protection order banning you from approaching the child.
• It affects your relationship with your children. On conviction, an order not to approach the child is mandatory (Art. 57.2 CP) and suspends contact arrangements while it lasts (Art. 48.2 CP).

So do not make any statement without a lawyer (and an interpreter, if you need one), and prepare your defence from the outset.

The right of correction after 2007: what Article 154 of the Civil Code says today

Until 2007, Article 154 of the Civil Code ended by stating that parents «podrán también corregir razonable y moderadamente a los hijos»: they could also correct their children reasonably and moderately. That wording, dating from Law 11/1981, underpinned the so-called right of correction (derecho de corrección), which the defence invoked as the lawful exercise of a right (Art. 20.7 CP).

Law 54/2007 of 28 December on International Adoption (first final provision), in force since 30 December 2007, deleted that sentence and required parental authority to be exercised with respect for the children’s physical and psychological integrity. Its preamble explains that the reform answered the UN Committee on the Rights of the Child, concerned that moderate correction might conflict with Article 19 of the Convention on the Rights of the Child: protection from all forms of physical or mental violence, including while in the parents’ care.

Today, after Law 26/2015 and Organic Law 8/2021, parental authority (patria potestad) is a parental responsibility exercised in the children’s interest and with respect for their physical and mental integrity. Organic Law 8/2021 on the protection of children against violence also includes «los castigos físicos, humillantes o denigrantes» (physical, humiliating or degrading punishment) in its definition of violence (Art. 1.2).

The practical consequence: anyone relying on the defence of lawful exercise of a right (Art. 20.7 CP) can no longer point to a power of correction written into the Civil Code, because that sentence was deleted in 2007. Bringing up children remains a parental duty (Art. 154 of the Civil Code), but it must be exercised with respect for the child’s physical and mental integrity. The law does not say what room for correction remains, and whether a specific act can be justified is for the judge to decide in the light of the circumstances.

Art. 153.2 CP: hitting a child, even without causing injury

Art. 153 CP punishes causing another person psychological harm or a minor injury (one needing no more than first aid), or striking or physically mistreating them without injury. If the victim is one of the people listed in Art. 173.2 CP, which include one’s own descendants and those of a spouse or partner, and minors living with the offender, paragraph 2 applies.

Outside the family, the same slap would be a minor offence (delito leve) under Art. 147.3 CP, punishable by a fine of one to two months and prosecuted only on the victim’s complaint. Within the family it is a less serious offence (delito menos grave) with these penalties:

Aggravation (Art. 153.3 CP). The penalties go to their upper half (for prison, seven months and fifteen days to one year) if the act is committed in the presence of minors, such as the child’s siblings, with weapons, in the shared home or the victim’s home, or in breach of a restraining order or similar measure. The Public Prosecutor’s Office (Circular 4/2005 of the Fiscalía General del Estado) grounded the aggravation for the presence of minors in the infringement of the rights of children who witness assaults between people in their family environment; the Code does not say whether it applies when the only minor present is the child who was hit. If the incident happens in the home you share, the shared-home aggravation may apply.

Mitigation (Art. 153.4 CP). The judge may impose the penalty one degree lower, giving reasons in the judgment, in view of the circumstances of the offender and of the act: the route for an isolated, very minor incident.

Paragraph 1, with a higher penalty, is reserved for a female partner or former partner and for a «persona especialmente vulnerable que conviva con el autor» (a particularly vulnerable person living with the offender), a category the Code does not define. The Public Prosecutor’s Office told prosecutors to assess it case by case for a minor (for example, where a very young age limits the child’s ability to defend themselves) and, where a descendant living with the offender is particularly vulnerable, to apply paragraph 1 in preference (Circular 4/2005 of the Fiscalía General del Estado, section IV.A). On the line between occasional and habitual abuse, see our guide to Art. 153 versus Art. 173.2 CP.

If there is an injury needing treatment or the violence is habitual: Arts. 147, 148 and 173.2 CP

If the blow causes an injury objectively requiring medical or surgical treatment, the case moves to the offence of bodily harm under Art. 147.1 CP (three months to three years in prison or a fine of six to twelve months), and Art. 148.3 CP allows two to five years in prison if the victim is under fourteen.

If incidents are repeated, the habitual violence offence in Art. 173.2 CP comes into play: six months to three years in prison, loss of the right to own and carry weapons for three to five years and, if the judge considers it appropriate in the child’s interest, special disqualification from parental authority for one to five years, on top of the penalty for each assault. Habitual conduct is judged by the number of proven acts and how close together they are, even if they targeted different family members or have already been tried (Art. 173.3 CP).

A slap or a smack: how the courts assess it

There is no automatic answer. Art. 153.2 CP does not require an injury and the Civil Code no longer mentions a power of correction, but whether an isolated, very minor incident ends in a conviction depends on what is proved and on how the judge assesses the circumstances; on conviction, the judge may lower the penalty by one degree in view of the circumstances of the offender and of the act (Art. 153.4 CP). Factors that count include:

• The seriousness of the act: the child’s age, how hard the blow was and where it landed.
• The context: a single, reactive act is not the same as a pattern of blows, shouting or humiliation, which would point to Art. 173.2 CP.
• The evidence: medical reports, photographs, the child’s account and its consistency, and the family background, including any custody dispute.

A smack is not «nothing» by definition, nor does every gesture end in a conviction: the evidence decides.

Foreign families in Spain: the rules of your home country do not apply

Many families living in Spain, or here on holiday, come from countries with different rules: some still allow parents a defence of reasonable punishment, others prohibit all physical punishment. In Spain that does not change the law that applies: Spanish criminal law binds everyone on Spanish territory (Art. 8.1 of the Civil Code), whatever their nationality. In practice:

• Same offence, same consequences. A tourist or a newly arrived resident faces the same Art. 153.2 CP and the same mandatory restraining order as a Spanish parent.
• Not knowing the rule. The Penal Code provides for mistake as to unlawfulness: an unavoidable mistake excludes criminal liability and an avoidable one lowers the penalty by one or two degrees (Art. 14.3 CP). But ignorance of the law does not excuse compliance with it (Art. 6.1 of the Civil Code), so it is no automatic defence: whether it could be argued depends on the circumstances of the case.
• The case is conducted in Spanish or the region’s co-official language. A suspect who does not understand it is entitled, at the authorities’ expense, to an interpreter during questioning, at hearings and for related talks with their lawyer, and to a written translation of essential documents, always including decisions ordering imprisonment, the indictment and the judgment (Art. 123 LECrim). If arrested, you can also have your consulate informed (Art. 520.2 LECrim); see our guide to consular assistance for detained foreigners.
• Victims have language rights too: a free interpreter when giving a statement to the judge, the prosecutor or the police and when testifying at trial (Art. 9 of Law 4/2015 on the Statute of Victims of Crime).
• Think before travelling with the children. Taking a child from their habitual residence without the other parent’s consent and without justified cause can be parental child abduction (Art. 225 bis CP), punished in the upper half of the penalty if the child is taken out of Spain. The Code waives the penalty if the child’s whereabouts are disclosed within twenty-four hours and the child is returned immediately, or if the absence lasts no more than twenty-four hours, and lowers it if the child is returned within fifteen days (Art. 225 bis.4 CP).
• Residence status. Under Spain’s general immigration law, a temporary residence permit, including one on grounds of settlement (arraigo), requires having no criminal record in Spain or in previous countries of residence for conduct that is an offence in Spain, and on renewal the authorities assess any criminal record, taking into account pardons and suspended sentences (Art. 31 of Organic Law 4/2000; EU citizens are governed by their own rules, Art. 1.3). Applicants for Spanish nationality must prove good civic conduct (Art. 22.4 of the Civil Code). If you are not a Spanish national, ask your lawyer how a conviction, even by plea agreement, could affect your residence before agreeing to anything.

Restraining order, custody and contact: what matters most to a parent

The consequences for the relationship with your children can come at three stages:

• During the criminal proceedings. If the judge issues a protection order under Art. 544 ter LECrim with criminal measures and there are well-founded indications that the children have suffered or witnessed the violence, visits and communication with them are suspended, unless a reasoned decision in the child’s interest provides otherwise (Art. 544 ter.7 LECrim).
• In the family court. A parent facing criminal proceedings brought for attempting to attack the physical integrity, among other interests, of the other spouse or of the children who live with both parents is not granted joint custody (Art. 92.7 of the Civil Code). Where the proceedings concern an attack on their children, no visiting arrangements are set either, and any existing arrangement is suspended, unless a reasoned decision in the child’s best interests provides otherwise (Art. 94 of the Civil Code). In both cases, the same applies if the judge finds well-founded indications of domestic violence.
• With the judgment. The order not to approach the child is imposed in all cases (Art. 57.2 CP) and suspends contact arrangements until it has been served in full (Art. 48.2 CP). The Constitutional Court upheld that mandatory imposition; the judge keeps room to set its length and may take into account the seriousness of the acts and the danger the offender poses (STC 60/2010 of 7 October). Disqualification from parental authority, if imposed, removes the rights attached to it while it lasts (Art. 46 CP).

Any contact that goes against these measures, even with the other parent’s consent, may amount to breach of a court order under Art. 468 CP. More in our complete guide to restraining orders.

From the school’s report to the duty court: how the case proceeds

Many cases start with the school or the paediatrician, who must notify any signs of violence against a child (Arts. 15 and 16 of Organic Law 8/2021).

With a police report, if the suspect has been arrested or summoned to the duty court, injuries and violence against the people in Art. 173.2 CP can be dealt with as a fast-track trial (juicio rápido, Art. 795.1.2 LECrim). If the public prosecutor brings charges and there is no private prosecutor, the suspect can accept a plea agreement (conformidad) at the duty court and receives the penalty sought reduced by one third (Art. 801.1 and 801.2 LECrim); if there is a private prosecutor, the suspect can plead in the defence submission to the most serious of the charges (Art. 801.5), and the Public Prosecutor’s Office considers that the one-third reduction applies then too (Circular FGE 1/2003). That means accepting a conviction, with its mandatory restraining order: weigh it up with your lawyer beforehand, not in the court corridor.

If there has also been an act of gender-based violence against the woman who is or was the suspect’s wife or partner, the case is investigated by the Violence against Women Section of the Court of Instance (Sección de Violencia sobre la Mujer, Art. 89.5(a) LOPJ). If the child is the only victim, it is investigated by the Violence against Children and Adolescents Section where one has been set up and, otherwise, by the Investigation Section; where the same facts could fall to both specialised sections, the Violence against Women Section takes the case (Art. 89 bis LOPJ). More in our guide to the Courts of Instance.

The child’s testimony: pre-constituted evidence and the right not to testify

The child’s account is often the key evidence, and the law protects it in two ways:

• Pre-constituted evidence. If the child is under fourteen, the judge will in all cases order their statement to be recorded during the investigation as pre-constituted evidence (prueba preconstituida, Art. 449 ter LECrim), with defence counsel present (Art. 449 bis LECrim). That is when the defence must put its questions: at trial the recording is played, and the child testifies again only exceptionally (Art. 703 bis LECrim).
• Exemption from testifying. Children, as direct-line relatives, may decline to testify against their father or mother, unless their age prevents them from understanding what the exemption means or they have agreed to testify after being told of their right not to. Even if the other parent is among those exempted, they cannot rely on the exemption when they hold legal representation or de facto guardianship of the child victim, or are or have been a private prosecutor in the case (Art. 416.1 LECrim). More on the relatives’ exemption from testifying under Art. 416 LECrim.

What to do (and what not to do) if you are reported or are thinking of reporting

If you have been reported: do not make a statement without a lawyer (and an interpreter, if you need one); comply with any measure from the moment you are notified, without calling, writing to or approaching the child, even through third parties; do not discuss the complaint with your child or tell them what to say to the judge; gather what shows the context (school and medical reports, messages, witnesses); and have your criminal and family lawyers work together.

If you are going to report the other parent: take the child to a doctor and ask for the medical report; report it to the police, the duty court or the Public Prosecutor’s Office and, if there is a risk, ask for a protection order; do not question the child repeatedly or record them describing what happened, as this can contaminate their account; and describe the facts exactly as they happened: reporting false facts is an offence (Art. 456 CP).

At Alonso Sala, with more than 15 years of experience in criminal law, we act both for parents who have been reported and as private prosecutor on behalf of the child in family violence proceedings. You can call us for an initial assessment of your situation.