Dani Garavelli: Justifiable assault - a grown-up policy on smacking?

Corporal punishment in the 1890s. Picture: Hulton/Getty

When Irish senator and children’s rights campaigner Jillian van Turnhout co-sponsored an amendment to outlaw smacking, the child sex abuse cover-up that had rocked the country was at the forefront of her mind.

In the Republic, legislation allowing force to be used against children had been repealed in 2000, but a defence of “reasonable chastisement” remained in common law. There was no particular groundswell of public opinion for change; indeed, Growing Up in Ireland, a government-funded study, found nearly half of parents occasionally resorted to smacking, and polls suggested a majority of the population was against a ban.

But the UN Human Rights Committee had issued a damning report criticising the country for its “barbaric treatment of women and children”, with its position on smacking pinpointed as one of the key problem areas, and politicians realised the country was increasingly out of step with the rest of the world.

So, in October 2015, the Minister for Children, Dr James Reilly, tabled an amendment to the Children First Bill, removing the reasonable chastisement defence, with Turnhout countersigning it in the upper house.

“If you look at the context, we were dealing with a lot of historical cases of child abuse so I was very conscious of the way people would view our actions in 20 to 30 years’ time,” she says. “We know – because the research tells us – that hitting children doesn’t work, but we are still reticent to talk about abuse and violence in the home.

“A hundred years ago, people were allowed to hit their wives, their dogs and their children. It speaks to the values of our society that we are still arguing over whether it’s OK to hit children. In 20 years’ time people will look back and say: ‘It’s bizarre this was allowed to happen.’”

Thanks to the campaigning of Turnhout and others, smacking was outlawed on 11 December that year.

“Everybody told us it wouldn’t be possible. ‘Don’t do it,’ they said. But the moment we did it, it changed to: ‘Why didn’t we do this years ago? It makes total sense,’” says Turnhout.

Today, in Scotland, we are grappling with the same dilemmas. Like Ireland, we repealed legislation which allowed violence against children in 2003, but kept a defence of “justifiable assault” (although, under Section 51, it is illegal for children to be hit on the head, shaken or struck with an implement such as a belt).

In maintaining this position, we too fell behind; Scotland is now one of only seven European countries not to have outlawed the practice (Italy, Switzerland, the Czech Republic and the four countries of the UK). Globally, the number of countries which have introduced a ban stands at 52.

In 2014, the UN issued a high-profile rebuke to Scotland (and the other UK nations) for not complying with its Convention on the Rights of the Child on this issue and the Council of Europe has also applied pressure.

Despite being in the vanguard of much progressive legislation – equal marriage and the ban on smoking in public places, for example – the Scottish Government, which aspires to make Scotland “the greatest place in the world to grow up in”, has proved strangely hesitant to take action on this issue. Its stated position is that it does not support the use of physical punishment against children, but has no plans to legislate at this juncture.

Partly, this is born of a reluctance to criminalise parents who may be in more need of support than censure, but it may also have been influenced by the backlash over its attempts to introduce the Named Person provision, which ended up at the Supreme Court. The Scottish Government would doubtless be wary of fighting another battle that might see it branded as Orwellian, especially given that here – as in Ireland – there has never really been a well-orchestrated campaign for change, and public opinion on the issue is divided.

Now, however, momentum appears to be building behind Highlands and Islands Green MSP John Finnie’s proposed private members bill, the consultation for which was launched in May. The Children (Equal Protection from Assault) (Scotland) Bill has already received support from a large number of groups including Children 1st, Barnardos, the Church of Scotland, the Scottish Violence Reduction Unit, the Police Superintendents Association and Social Work Scotland.

Last week, the Law Society of Scotland revealed it had also thrown its weight behind the ban. “There has been a change in culture over the years and physical chastisement of children is increasingly understood to be both ineffective and out of step with our understanding of children’s rights,” said Ian Cruickshank, convener of the Law Society’s Criminal Law Committee. “These proposals seek to provide clarity in the law and to clearly define the limits of acceptable behaviour which would be applicable to all, regardless of age.

“If the law is changed in line with the proposed bill, it would set clear boundaries as to what is acceptable when it comes to the physical punishment of children.”

Now the consultation period is over, Finnie, a former police officer, must collate the responses, focus on the detail of the bill and win the backing of 18 MSPs from at least three parties.

When Sweden became the first country to ban smacking in 1979, its actions seemed truly radical. Since then, however, a wealth of research has emerged which suggests physically punishing children is ineffective as a form of discipline and has a long-term impact on their well-being.

Last year, a study undertaken by researchers at the University of Texas at Austin and the University of Michigan, and published in the Journal of Family Psychology, concluded “spanking” – defined as “hitting a child on their buttocks or extremities using an open hand” – was linked to 13 negative outcomes, including greater aggression, more antisocial behaviour, more mental health problems, more negative relationships with parents, lower cognitive ability and lower self-esteem.

Another study of 33 US families with children aged between two and five found that in three-quarters of incidents, children who were spanked misbehaved again within ten minutes.

In 2015, academics commissioned by Scots charities to investigate 74 studies across the world, called for smacking to be outlawed after finding “compelling” evidence it creates a “vicious circle” of conflict and violence that carries on into adulthood.

Despite this, smacking bans continue to provoke controversy in some countries. Earlier this year, the government in France, where 85 per cent of parents are said to administer la fessée – a spanking – expanded the definition of parental authority in the Civil Code to include rejecting “all cruel, degrading and humiliating treatment, including all recourse to corporal violence”.

The new rule, which carried no sanction, was intended to be read out to couples when taking their wedding vows, but a group of conservative senators challenged it on the grounds it had no connection to the original bill (on equality and citizenship) and it was struck down by the Constitutional Council.

Some religious and right-wing organisations oppose a ban on the grounds that decisions on discipline should be a matter for the family. In 2015, Pope Francis said it was justified for parents to smack children so long as “their dignity was maintained”.

The former moderator of the Free Church of Scotland David Robertson has said any such move is unnecessary and erodes the rights of parents. “It’s already against the law to hit a child on the head or to hit them with an implement or to shake them,” he said. “This is going to criminalise good parents, just for tapping their child on the hand.”

Among the general population, however, views are more nuanced. In 2006, 58 per cent of Scottish mothers were found to have smacked their children; yet 80-90 per cent of parents who took part in the Growing Up in Scotland study said smacking was “not very” or “not at all” useful. This suggests that many of those who continue to smack do so not because they endorse it as an effective strategy, but because they are at the end of their tether.

Others, says Turnhout, remember being smacked themselves and so see a ban as a judgment on their own parents. “These people will say: ‘I was smacked and it didn’t do me any harm.’ But the research now shows it probably did.

“Our parents acted as they thought best at the time, but things have moved on. We now know smacking has a negative impact so we need to lose all the baggage and do what’s right.”

A more persuasive argument against a ban, perhaps, is that we shouldn’t be punishing parents who are doing their best in difficult circumstances. A stressed mother spanking a child may not be ideal, but how would a fine or a court appearance help either her or her family? Also, wouldn’t the knowledge she is committing a criminal offence put her off seeking outside support and so exacerbate the problem?

Finnie insists the aim is not to punish parents but to clarify what is and isn’t good parenting, and accelerate a cultural shift away from smacking. He says the bill may lay out plans for additional parental support for those who are struggling to cope.

In Ireland, no increase in prosecutions has been reported. “There has been no increase in children going into care either,” says Turnhout. “In fact, social workers have said it is making things easier and has improved relationships with parents because they no longer have to get into a moral debate over what is OK when it comes to hitting a child, they can just say: ‘It’s not acceptable, so let’s look at other strategies.’”

Mary Glasgow, director of children and family services and external affairs with Children 1st, agrees the object is not to humiliate parents – or break up families – but to encourage them to look at other ways of dealing with stressful moments.

“Police and social work professionals already use a huge amount of discretion [when it comes to hitting children] and there’s a lot of understanding out there about how tough it is to bring up kids.

“The idea is to open up conversations about what strategies we use to raise children – without shame, without blame, but with absolute clarity.”

As Children’s Commissioner for Scotland for eight years, Tam Baillie was a dogged campaigner for a ban on smacking, often joining forces with his fellow children’s commissioners in England, Wales and Northern Ireland to point out how badly the UK was faring.

When he left the post this year he said his biggest regret was not having overseen the introduction of a ban.

“I think one of the things that holds the government back from acting on this is because they don’t want to open up another front of being accused of interfering in family life,” says Baillie.

“However, I don’t think having ‘justifiable assault’ on our statutes is a tenable situation. And, on this one, I feel it is the politicians’ duty to lead and not be led by public opinion.”

His successor, Bruce Adamson, is also resolute in his support for a ban. “There are some [areas] where Scotland is doing very, very well and there are some things that are absolutely shocking; where Scotland is coming last in the world.

“We still in Scotland say that it’s okay for a parent or carer to assault a child for the purpose of physical punishment, and that that can be justified, which is just untenable in international human rights terms. I think it really goes against the basic values that we hold in Scotland in terms of human dignity and respect for children.”

So can legislation be used to shift attitudes on smacking in Scotland? That certainly seems to be what has happened in Sweden. The country has seen a steady reduction in the use of corporal punishment over three decades and support for smacking now stands at less than 10 per cent.

If successful, Finnie’s bill would be the latest measure to tackle Scotland’s chequered reputation on children’s rights. Last year, the government announced plans for legislation to raise the age of criminal responsibility from eight (the lowest in Europe) to 12. Ministers also banned Police Scotland from carrying out random stop and searches for alcohol on teenagers.

“The Scottish Government wants to be able to say that this is the best country in the world for children to grow up. Changing the legislation would be a positive step in making that true,” says Glasgow.