Is parental smacking now a criminal offence in Scotland?
Since 7th November 2020 parental smacking has been a criminal offence in Scotland. The Children (Equal Protection from Assault) (Scotland) Bill was passed by the Scottish Parliament in October 2019.
Does this mean I can’t give my child a tap on the back of the hands as a form of discipline?
That’s correct. It is illegal to give your child a light tap on the back of the hand or leg as a form of discipline. Previously the ‘reasonable chastisement defence’ prevented parents from being criminalised for this but the defence has been repealed.
Did the law need to be changed?
No. Any discipline that was “immoderate or excessive” was already against the law. The reasonable chastisement defence could not be used in cases where ‘actual bodily harm’ was caused - defined as anything more than transitory reddening of the skin. If a parent used unreasonable chastisement they already faced a fine, a community order or up to five years in jail.
But on 7th November 2020 the reasonable chastisement defence was abolished and so parents who use reasonable chastisement – even the lightest tap on the hand or back of the legs – could be arrested and face a criminal charge, potentially leading to a criminal record, a fine or imprisonment, and personal and professional ruin.
The European Court of Human Rights has upheld the legal defence of reasonable chastisement in principle. The current law on smacking is compatible with human rights laws.
The UK Supreme Court noted in a recent ruling that “there is an inextricable link between the protection of the family and the protection of fundamental freedoms in liberal democracies.” It went on to say “Different upbringings produce different people” before concluding: “Within limits, families must be left to bring up their children in their own way."
What happens if someone sees me smacking my child?
Controversial Government guidance advises that if a person witnesses a parent smacking their child they should call 999 and “report a crime in progress”. This is despite supporters of the ban repeatedly claiming that changing the law would not criminalise loving parents.
After a backlash Government officials quietly tweaked the advice to say the public should only call 999 if they think a “child or young person is in immediate danger”.
Guidance for practitioners issued by Aberdeenshire Council stated that: “Police will record a crime and investigate all reported incidents of Equal Protection.”
What problems could the law change create?
- 85% of Scottish adults have been smacked. Outlawing reasonable chastisement will inevitably catch ordinary loving parents and turn them into criminals. The slightest touch could become grounds for an assault charge.
- But even if a parent is released without charge, the nature of being arrested and investigated could have a hugely damaging impact on the parent and family. Children may be removed from their parents while an investigation is underway. And a parent may be left with a record, which would show up on DBS checks, preventing the parent from working with children in the future. This could be detrimental to some lives and livelihoods.
- It involves unreasonable state interference in family life and undermines parents. This could create a harmful breakdown between vital parent/community relationships.
- Children could be removed from their parents merely on the suspicion of having been smacked.
- The smacking ban could be weaponised by divorcing parents or used within family rifts leaving children in a vulnerable position.
- Police, social workers and others involved in child protection are already at breaking point. This law change will inevitably divert their valuable time and resources away from those children who are genuinely at risk of abuse.
Are the public in favour of a ban?
No. For example, a 2017 poll of 1,010 Scottish adults asked: “Should parental smacking of children be a criminal offence?” 74% said no.
What evidence is there for the benefits of a ban?
Those in favour of a ban often cite Sweden as a role model. It banned smacking in 1979 and as the first country to do so is a useful case study because there is more data available to assess the claims of anti-smacking campaigners.
They argue that reasonable chastisement teaches children that violence is acceptable. On this basis, we might expect the figures to show lower levels of violence among children after the ban. In fact figures from Sweden show the opposite to be true: child-on-child violence increased by 1,791% between 1984 and 2010.
In his critique of the Swedish attitude to parenting, psychiatrist David Eberhard argues that following the ban parents have become scared to say no to anything.
Studies show that after the ban children became significantly less accepting of any parental rights to discipline them through grounding or other restrictions. In 2000, only 4% of teens felt that their parents had the right to “threaten to forbid something” down from 39% five years earlier.
Dr Ashley Frawley, a sociologist from the University of Swansea, recently commented on an anti-smacking article in The Lancet. Highlighting a major problem with studies often used to justify banning smacking she said they, “often fail to distinguish between light discipline within a loving family, and parental abuse”.
A 2021 study linking smacking to negative outcomes in children was criticised by experts in sociology and parenting for using academia to promote political bias.
Dr Stuart Waiton, a senior lecturer in sociology and criminology at Abertay University, said: “This is yet another advocacy piece of research that knows what it’s going to find before it starts. The reality is that these ‘research’ projects by ‘experts’ tell us more about the professional classes and their deep-seated prejudices about ordinary people than anything about children or parents”.
An examination of this report revealed that the ‘smacking’ cohort was far too broad, as it included both those who smack lightly once a month alongside those who physically abuse their children.
But isn’t smacking a form of abuse?
No. Most reasonable people know there is a big difference between child abuse and loving parental discipline.
A parent who gives their three-year-old a light smack to impress upon them the importance of not running out into the road should not be treated as a child abuser. The 85% of Scottish adults who were smacked know that their parents were not child abusers.
Smacking is used when verbal warnings and other disciplinary tactics have been ignored or cannot be understood because the child is too young. Children, particularly those aged between two and six, do not tend to assent rationally to what their parents say is good for them.
Those seeking a smacking ban often deliberately muddle smacking with ‘hitting’. With good parents reasonable chastisement will not be done in anger but in a controlled manner and with an accompanying explanation as necessary. Parents use a range of approaches to discipline their children. It is often the case that parents don’t feel the need to smack their child at all, but for most parents smacking is one form of loving discipline among many. Most people regard this as legitimate and reasonable.
Everyone accepts that the State must intervene to protect children who are in danger of abuse. But under the new law, loving parents who use mild physical discipline could end up with an assault charge.
Does the new law only apply to Scottish residents?
No. The new law would also apply to anyone visiting Scotland.