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The abolition of smacking in Scotland

The Scottish Parliament Information Centre (SPICe) published a briefing paper (click here to view) on the Children (Equal Protection from Assault) (Scotland) Bill last week (20th February 2019), a significant step in the progress of this Bill on its way through Parliament.  This Bill is a private member’s bill introduced by John Finnie MSP in September 2018 following a public consultation on the physical chastisement of children.  The UN Convention on the Rights of the Child sets out the fundamental human rights for children and young people was ratified by the UK in 1991, and specifically requires parties to it to take all steps necessary to prevent physical violence being used against children. 
The aim of the Bill 
The aim of the Bill is to align the law in relation to assault for adults and children by bringing to an end the permitted physical punishment of children by parents and others caring for or in charge of children.   
Current law 
Currently the attack of one person by another is an assault, whether the victim is an adult or a child.  However, a person charged with an assault on a child can claim the defence of “reasonable chastisement” or “justifiable assault” if the force used was to discipline the child.  This defence is not open to attacks in relation to adults meaning that adults and children are treated differently.  
Section 51 of The Criminal Justice (Scotland) Act 2003 reformed the law in relation to the physical punishment of children.  
In particular, the following assaults can never be justifiable: 
(a) a blow to the head;
(b) shaking; or
(c) the use of an implement 
It also sets out a number of factors courts should take into account when the defence of “justifiable assault” is used: 
(a) the nature of what was done, the reason for it and the circumstances in which it took place;
(b) its duration and frequency;
(c) any effect (whether physical or mental) which it has been shown to have had on the child;
(d) the child’s age; and
(e) the child’s personal characteristics (including, without prejudice to the generality of this paragraph, sex and state of health) at the time the thing was done.
What the Bill does 
The Bill does not introduce any new offence of assault against a child, since assault is already a crime under our common law.  However, what it does do is abolish the common law defence of “reasonable chastisement” or “justifiable assault” so perpetrators would not have that defence.  It also repeals s51 of the Criminal Justice (Scotland) Act 2003. 
Is there a need? 
A report was commissioned by the NSPCC Scotland, Children 1st, Barnado’s Scotland, and the Children and Young People’s Commissioner for Scotland to outline the effects of physical punishment of children.  This report is called “Equally Protected”.  It found that

Physical punishment is not effective in achieving parenting goals. There is little evidence that it improves children’s behaviour in the long term.

There is strong and consistent evidence of a link between physical punishment and childhood aggression and antisocial behaviour.

Physical punishment exacerbates existing problem behaviour.

Childhood physical punishment is linked to adult aggression and antisocial behaviour.

Children who are physically punished are at greater risk of serious injury and physical abuse.

Physical punishment is related to depressive symptoms and anxiety among children.

Other negative outcomes that were shown to be related to physical punishment are parent-child conflict, adult mental illness and adult substance abuse.

It is therefore clear that the physical punishment of children can cause long term damage to children.  Prohibiting physical punishment by law is likely to change public views and encourage the use of other forms of discipline.
Public opinion 
It is clear that public opinion on physical chastisement has changed over the last 50 years.  Of course, physical chastisement of children in schools was only banned in 1986.  In the 50s and 60s children were caned or belted fairly regularly in school.  This was mirrored at home.  Physical chastisement was very much expected, and considered necessary, for disciplining children.  These children are now grandparents.  They are likely to have used physical punishment against their own children and the saying “it never did me any harm” is often banded about by this generation.  However, the parents of young children today have been brought up differently.  They have different values and beliefs.  Children are seen and treated differently and are valued members of our society, being encouraged to participate fully at a young age, and to have views and rights of their own. As a result, it is far less common for a young child to be smacked now than it was 30 years ago.  It is hoped you no longer see children having their trousers pulled down and smacked in the middle of a shopping centre!  So why not ban it completely?  Why not recognise the adverse effects on children of physical punishment and outlaw its use entirely?  It is clear that, for some, behavioural change will not happen without laws being passed.  The current culture of giving children better rights and access to services, with the introduction of the Children and Young People Act 2014 and the introduction of GIRFEC, flies in the face of the current laws allowing physical violence to be used against them.  
During the consultation process of the Bill, 75% of the respondents supported the Bill and 25% did not.  The reasons for that were widespread.  Those who supported the Bill generally considered that: 

children should have the same rights as adults in being protected from assault;

physical punishment is not effective and can lead to long-lasting emotional and physical difficulties and damage;

a change to the law is required to stimulate and ensure that the required behaviour and societal changes take place;

the proposal is required to ensure Scotland complies with human rights legislation and obligations.

Those who did not support the Bill generally considered that:

smacking is not the same as assault or abuse and should not be considered as such;

the current law is sufficient to protect those at risk;

state interference in private family life is not welcome or needed;

physical punishment is effective in loving families and environments;

without physical punishment as an option for discipline and guidance, society will suffer negative consequences as a result of unruly children not having learnt right and wrong and boundaries of behaviour.

Where do we go from here?
The First Minister, Nicola Sturgeon, has said that she will support the Bill.  If it is passed Scotland would be the first country in the UK to effectively ban the physical chastisement of children.  There would require to be an extensive publicity campaign to raise awareness of these changes, and a general shift in attitude of a large percentage of the population who currently use physical chastisement to discipline their children.  It is therefore proposed that the law does not come into force until one year after the Bill is enacted to allow this to happen. 
What are the potential concerns? 
One concern in relation to this is how it is managed in practical terms.  It is likely to result in an increase of referrals to the Children’s Reporter and an increase in referrals to social work.  Will teachers have an obligation to refer children who report being smacked to social work?  The answer is likely to be yes, since it is a crime.  The consequences for this could be pretty grim.  On one level it will put additional pressure on a system which is already at saturation point by increasing the number of cases to be investigated.  Who is likely to suffer as a result of this?  Will the extra work involved in policing physical chastisement cases mean that a more serious case of child abuse is missed?  It is unlikely there are going to be specialist social workers employed for this purpose, of course, and the concern is that too much time is taken up investigating these complaints to allow those investigators to carry out investigations of more serious cases.  What happens to the children who are the subject of the complaint while it is being investigated?  Are these children removed from their parents, the perpetrators of the crime?  Is this in their best interests?  There are many questions raised about the enforcement of such laws. 
However, while these problems will need to be addressed at some point, the abolition of physical violence towards children for any reason must surely be welcomed.