Gordon Lindhurst: Smacking ban bill is deeply troubling

Is smacking of children 'reasonable chastisement' or criminal assault? (Picture: John Devlin)
Is smacking of children 'reasonable chastisement' or criminal assault? (Picture: John Devlin)
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Our current law on smacking children recognises the complexity of human relationships, writes Gordon Lindhurst.

Fifteen years ago, the Scottish Parliament gave detailed consideration to a law banning the smacking of children in Scotland. Recently released documents from that time have shown how Ministers sought to wrestle with the issue. In a memo to Cabinet colleagues, the then Justice Secretary Jim (now Lord) Wallace set out his belief that a ban would help rid Scotland of its violent reputation. But he added “there is no point passing a bill that will be disobeyed or ridiculed”. He also cited the risk that good parents would be at risk from prosecution. A year later, with scant political support, the then Scottish Executive’s proposals were dropped.

Surprisingly, last week, the question of a smacking ban re-emerged. Green MSP John Finnie has proposed a backbench private members bill introducing a ban on smacking. The SNP Government has now given the bill its initial support. A ban could be in place as early as next year.

And far from having solved some of the issues that tied up Mr Wallace, the fresh legislation being proposed fails entirely to answer any of the questions from 15 years ago. It is as if history is being repeated.

First, there is the question of why we need a new law in the first place. New laws are usually brought in by parliaments because existing legislation is not deemed to be working. But, while the motives of those who support a smacking ban now should not be criticised, it’s not clear what problem they have with the law as it stands.

Because it appears to have worked well. It allows “reasonable chastisement” from parents as a means of instruction, correction and discipline. But it prevents disproportionate physical punishment of children. The law also means the persons most closely connected with a child (usually the parents) are empowered to make decisions on what is in the best interests of the child. This chimes with the longstanding principle that parents, rather than the state, should have primary responsibility for their children and that intervention by the courts in family matters should be a last resort.

The UK Supreme Court has recently affirmed that approach as a fundamental aspect of human rights law, emphasising the need for “the detailed working out, for children, of the principle established in article 16(3) of the Universal Declaration of Human Rights and article 23(1) of the International Covenant on Civil and Political Rights that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the state’”. The court added: “There is an inextricable link between the protection of the family and the protection of fundamental freedoms in liberal democracies.”

READ MORE: Smacking to be outlawed in Scotland as ban is backed

This is a balanced position, which takes account of parental responsibilities and children’s rights. But, under the plans being set out by Mr Finnie, that would come to an end. The new Holyrood consultation on the matter makes only one proposal: to subject parents to criminal liability at common law by removing the “reasonable chastisement” defence. In other words, what it proposes to do is to reclassify this definition as “assault”. The effect of the consultation proposal is to remove parental discretion and to give that power to the state.

Proponents of the Bill say this new approach will bring Scotland into line with other countries. They also point to the fact that bodies such as the United Nations have come out in favour of banning smacking. But the UN position is much more nuanced than what is being proposed for Scotland. First, it draws a “clear distinction between the use of force motivated by the need to protect a child or others and the use of force to punish”. And secondly, the Convention emphasises the harm that non-physical punishment can cause.

The truth is that our current law recognises the complexity of human relationships and the distinctions to be drawn between children and adults. It is based on the fundamental recognition that children are not adults, nor adults children. Different approaches therefore apply to children, particularly in terms of the responsibilities not placed upon them because they are not adults. This is for their protection. Children are not held to the same high standards as adults when they (as children often do) “assault” each other, even within the same family. For them, the family and childhood are the situation in which they learn how to conduct themselves until they become adults.

READ MORE: Poll: Should smacking children be banned in Scotland?

And adults make conscious decisions on whether or not to involve the state in their affairs, having both capacity and understanding of the potential consequences of doing so. Particularly younger children are unlikely to be aware of or understand the serious consequences of involving state authorities in their family’s life. These consequences can have a lifelong detrimental effect on a child and other family members.

The flaws in the current consultation paper go on. In a section headlined “Equalities”, it suggests that criminalising modes of physical intervention would “provide clarity and ensure consistency in the law for children belonging to all cultural and religious groups”. It fails to discuss the protection of children and families or beliefs and values against state interference. Bizarrely, it identifies current discriminatory inequality in the treatment of children on the grounds of age. This is on the basis that physical “chastisement” diminishes as children grow up. Is it not true that physical interventions decrease simply because children learn as they grow up the differences between right and wrong and become progressively more amenable to rational persuasion, even as they themselves develop their own ability to rationally persuade and discus? The consultation paper thus fails to reflect the nuances of modern equality law which comprehends that equal treatment does not equate to precisely the same treatment of individuals with different characteristics.

Another concern is that the bill would “provide clarity to members of the public” meaning, apparently, to bystanders who may know nothing about the parent, the child or even the circumstances as they are unfolding. According to the consultation: “Currently, they can find it difficult to know whether to intervene if they see a child being physically punished in public. Should legislation be passed, then they will be in no doubt that such behaviour towards a child is unacceptable.” Well-meaning as this may sound, criminal lawyers will immediately grasp the significance and consequences of such an attitude applied in a public place. What may appear to be a “punishment” or “assault” to one person is not to another.

The draft bill is now out. It fails to address any of these concerns. I believe many parents and families across Scotland will feel deeply troubled by the implications of what we are seeing. At the end of the day, the purpose of the law should not be to provide supposed clarity to strangers as a basis to interfere in other people’s family relationships. As Jim Wallace found out back in the early 2000s, doing so only opens up a can of worms.