Govt’s Freudian slip shows reality of Scotland’s smacking ban

Simon Calvert, spokesman for Be Reasonable Scotland

Earlier this month, Be Reasonable highlighted chilling new government guidance on the smacking ban, due to come into force on 7 November, which advised members of the public to call the police if they see a parent smacking their child. The guide, on official website, said Scots should “dial 999 to report a crime in progress”.

Following widespread media coverage of the advice, officials quietly watered it down. The web page now states that people should call 101 – the police non-emergency number – if they witness smacking. However, other guidance sent to stakeholders still talks about dialling 999. The damage is already done.

Presumably someone in government realised the negative PR of suggesting that loving mums and dads who tap a child on the bum deserve to be tracked down and arrested by police officers. The problem is, regardless of what guidance says, this is exactly the eventuality we can expect under the smacking ban.

When the ban comes into force next month, the kind of mild discipline that would never be escalated to an investigation under the current law will become criminal. Parents and carers will be reported for smacking, will face investigation by the police, and will risk prosecution for assault.

As Police Scotland noted this week, the smacking ban legislation “removes the statutory defence that was previously available”. Detective Chief Superintendent Samantha McCluskey, head of public protection at Police Scotland, told The Herald: “Every report is unique and officers will have to look at all of the information and the circumstances of each report when considering disposal options, one of which will be reporting to COPFS for potential prosecution”.

So some parents will face prosecution for smacking, whilst others will face alternative “disposal options” such as an official warning. The impact of a police warning or a criminal record on parents is huge, both for them and for the children in their care. Parents in certain professions could lose their jobs. And the stress of police investigations into families also cannot be underestimated, whatever the final outcome is.

The debacle this week over the smacking ban guidance can be seen as a Freudian slip by the government. For two years, politicians have repeatedly sought to assure the public that the smacking ban isn’t about ‘criminalising parents’. During a debate on the smacking ban last year, Minister for Children and Young People Maree Todd told MSPs: “I assure members that our intention is not to criminalise parents”. Green MSP John Finnie, the architect of the bill, went even further, telling BBC Radio Scotland: “This isn’t about criminalising anyone. This is about supporting parents”.

These statements were simply not true. Changing the criminal law to outlaw even the mildest physical discipline of children was always going to result in good parents being turned into criminals. You can’t change the criminal law and expect it not to have consequences in the real world. Smacking ban supporters may have believed their own rhetoric but those of us living in the real world never did.

The public should be outraged at the political classes and the campaigners who pushed for this change in the law without understanding the reality of what they were doing. Scotland’s smacking ban goes considerably further than legislation in many other countries. Most other countries with so-called smacking bans have only made changes to the civil law which don’t result in criminal sanctions against parents. But from 7 November, parents in Scotland can be charged with assault.

Proponents of the law claimed that a change in the law was necessary to bring children ‘equal protection from assault’. But child abuse is already illegal. The rarely cited reasonable chastisement defence simply makes clear that the very mildest discipline by ordinary, decent parents should not result in criminal charges, whilst emphasising that shaking, smacks aimed at the head and using an implement are illegal.

As with so many law changes in recent years, the smacking ban is another example of politicians co-opting the criminal law to ‘send a message’. Failed policies like the Offensive Behaviour at Football Act sought to do this. And the hated Named Person scheme, which also sought to meddle in family life, resulted in a great deal of stress for families.

Supporters of the smacking ban may feel virtuous just now, but they won’t do a year or two down the line when the true impact of the smacking ban is known. It will be measured in broken families, loving mums turned into criminals and even more overburdened police officers and social workers. When these realities appear, we’ll know where to apportion the blame.