Smacking Ban: New legislation imminent
Scotland is introducing a ban on smacking, but what’s it all about?
New legislation is anticipated following the success of Green MSP John Finnie’s Member’s Bill (Proposed Children (Equal Protection from Assault) (Scotland) Bill) calling for Scotland to ban the smacking of children in the name of chastisement. The Government have announced plans to fully support the Bill and have said that they will draft legislation imminently.
The Green MSP said Scotland “cannot be thought of as the best place in the world for children to grow up while our law gives children less protection from assault than anybody else in society“.
Yesteryear’s calls of …
“Spare the rod, ruin the child”
…will soon be an echo of a long-gone era.
As a nation we are perhaps reluctant to accept change, but change we must.
For many this is not a moment too soon, particularly after the UK Children’s Commissioners’ Report to the UN Committee on the Rights of the Child (2008), stated that “the steps taken across the UKfall far short of the recommendations made by the Committee in 2002 and in its General Comment on Corporal Punishment”.
More recently in 2016 the UN Committee concluded that the UK (including Scotland) should “prohibit as a matter of priority all corporal punishment in the family, including through the repeal of all legal defences”.
NSPCC Scotland welcomed the Scottish Government’s announcement, saying this is a “welcome step on the road towards fairness and equality for children“.
So, what’s the legal position on smacking now?
Presently the common law position provides a defence to an allegation of assault against a child where the chastisement is moderate, reasonable and age appropriate to achieve the legitimate aim of fulfilling the responsibility to safeguard the child’s health, development and welfare or to provide direction and/or guidance the physical punishment of a child and in those circumstances it may be considered ‘justifiable assault’. However, under the Criminal Justice (Scotland) Act 2003, s51, any physical chastisement for any other purpose amounts to assault, and the use of an implement, shaking or striking a child on the head are not protected under the defence available.
Once the law is passed, will parents be prosecuted for a criminal offence?
What’s less clear at this stage is whether the ban will result in criminal or civil proceedings. The original proposal was for the defence of ‘justifiable assault’ to be abolished, but the Government now appears to hinting that an all-out ban on smacking is likely.
While a staggering 52 other countries in the World have already banned the practice, not everyone agrees it should be considered a criminal offence. “Be Reasonable” revealed the results of a ComRes poll confirming that almost three quarters of adults believe parental smacking of children should not be a criminal offence.
However, there is a reluctance of the general public who may be willing to embrace change, but who would wish some distinction between a parent smacking their child “in the heat of the moment” and the criminal charge of assault.
We are all watching for the Scottish Government’s proposals with great interest…
Meanwhile, in other parts of the UK: The Children’s Commissioner for England and the NSPCC are saying that Westminster should now follow suit and extend the ban to England and other parts of the UK it has authority over.
Sharron Sutherland
