LAW EXPERTS WARN MSPs: SMACKING BAN WILL CRIMINALISE PARENTS FOR ‘REASONABLE’ BEHAVIOUR
Legal experts have rubbished plans by a Green MSP to ban parental smacking saying it would criminalise parents for using “mild”, “reasonable” discipline, and usher in legal enforcement which would “destroy family relations and trust”.
Pamela Ferguson, Dundee University’s professor of Scots Law, and Michael Sheridan, of the Scottish Law Agents Society, were invited to provide witness evidence to Holyrood’s Equalities and Human Rights Committee (EHRiC) on the Children (Equal Protection from Assault) (Scotland) Bill.
The proposal, drawn up by John Finnie MSP and supported by the SNP Government, would remove the defence of ‘reasonable chastisement’ which currently prevents parents being prosecuted for using mild physical discipline.
Both Ferguson and Sheridan said a smacking ban could result in parents being charged and dragged through the courts.
In her submission to MSPs, Prof Ferguson stated that John Finnie’s Bill would “criminalise actions or behaviours which are currently lawful, such as smacking”.
She added: “It is difficult to predict the outcome of the Bill but an increase of reporting and prosecution of assaults on children by parents is a distinct possibility.”
Spelling out his views in his written submission Mr Sheridan told the committee that under the proposed legislation, a parent could “be guilty of assault, even if acting reasonably”, adding that prosecutions for smacking must follow as a matter of course, otherwise the change to the law would be “meaningless”.
Mr Sheridan stated:
“The removal of the defence which is specified in the Criminal Justice (Scotland) Act 2003 may render a parent who strikes a child in a manner presently permitted by that Act liable to be charged with common assault.
“However, given that an element of the present defence is the requirement that the parent has acted reasonably in the judgement of the court, it would appear that the parent could, under the new legislation, be guilty of assault, even if acting reasonably. To that extent, the new legislation may be contradictory within itself”.
He continued: “The offence of assault does not draw a clear distinction between actions such as mild physical intervention, forcible restraint, striking with an open palm, a tap on the wrist and smacking. Any of these actions or even putting the victim into a state of apprehension that any of these actions might take place even where no actual contact takes place satisfies the definition of common law assault.
Sheridan added: “I would not agree that it is appropriate to remove the existing defence which is a wholly appropriate mechanism for restricting unnecessary law enforcement from the private, domestic household where such enforcement would be entirely disproportionate to any possible level of offending created by the Bill and which enforcement could destroy family relations and trust”.
He concluded: “I would offer the further comment that whereas this Bill seeks to provide children with treatment which is equal to the treatment of adults whereas children require treatment which is very different to that required by adults and the Bill appears to me therefore to be based entirely upon a false premise.
“Further, the literature around the Bill suggests that the reasoning behind the Bill is based on a United Nations definition of punishment which includes; ‘hitting (―smacking, ―slapping, ―spanking) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children‘s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading.’
“However, these activities are clearly criminally illegal under present Scots law and, again, the Bill appears to be based upon a false premise.”
Their views echo those of the Be Reasonable campaign which is leading opposition to the Bill and supports the existing law.
Spokesman Jamie Gillies said: “John Finnie and others constantly deny that good parents will be criminalised but these legal experts totally contradict this.
“There are 614,000 families with dependent children in Scotland and many of these parents face the threat of being criminalised if this Bill goes through and they are found to have given their children a tap on the back of the legs.
“Criminalising light physical discipline would be massively disproportionate and a huge waste of time for the police and others who must remain focused on tackling genuine abuse.
“The idea is also incredibly unpopular with the Scottish public, 75% of whom do not support a smacking ban. John Finnie and the Scottish Government need to listen to the experts here and bin this nanny state law.”
The Bill has attracted massive public opposition during the consultation process but this not been reflected in the committee’s evidence sessions.
Almost 90 percent of public submissions were against the proposal to remove the defence of reasonable chastisement and make smacking a criminal offence.
A massive 97 per cent of submissions made by individual members of the public condemned the plan to criminalise mums and dads for smacking their kids.
Yet well over 80 per cent of witnesses invited by the committee to give evidence have supported the Bill.
Be Reasonable has also expressed concerns about the workings of the committee probing the Bill. Five of the seven members of the Equalities and Human Rights Committee are co-sponsors of the legislation and the convenor, SNP MSP Ruth Maguire is John Finnie’s daughter.
A spokesman for the campaign has written to Presiding Officer Ken McIntosh asking him to make sure the committee is applying “impartial scrutiny” to its work.