Smacks of the bad old days

Smacking, as a form of discipline, was consigned to the Scottish history books following the introduction of the Children (Equal Protection from Assault) (Scotland) Act 2019. A complete ban on physical punishment has been enforced in Scotland since November 2020. Under the terms of this Act, in Scotland any physical punishment of a child is deemed assault and can result in prosecution.

The restrictions emanating from Acts of Parliament, or the so-called “Nanny State” as Iain Macleod called it back in 1965, are the subject of a wider, and seemingly eternal, debate on the role of the state. The smacking ban joins the smoking ban, minimum unit alcohol pricing and their ancestor, the seatbelt, as laws influencing how individuals themselves behave.

Notwithstanding their initial criticisms, there have been undoubted and obvious benefits to the individual and others as a result of these rules. Clearly, there is a balance to be struck between the restriction on individuals’ freedom to parent and the duty of the state to protect its citizens, including our children.

Smacking a naughty child could get you in trouble with the law - it's assault (Picture: Adobe)

However, neither England nor Northern Ireland have instituted a total ban. “Reasonable chastisement” is still permissible in England, in accordance with the Children Act 2004. High-profile examples in recent cases, along with recent European Court of Human Rights’ rulings, have reignited the debate and placed additional pressure on the UK Parliament to follow the examples set by Scotland by enacting a total ban on physical punishment.

The National Society for the Prevention of Cruelty to Children has reported that smacking during childhood has a detrimental impact and is linked to depression, anxiety, increased aggression and antisocial behaviour. On the other hand, campaign group Be Reasonable is concerned a total ban could result in criminal prosecution for minor incidents, as minor as a mother tapping her child's hand. Be Reasonable highlights that “unreasonable chastisement” is already illegal, and punishable by law, in England.

No parent would wish to be under constant scrutiny from the state or fear arrest for what they deem appropriate discipline. However, in practice, and based on my experience within the criminal justice system in Scotland, there have been no prosecutions of parents for minor acts like tapping their child's hand. Instead, prosecutions typically involve repeated conduct, injury, clear excess force or frequency, and, on one occasion, throwing a television remote. These nuances represent the balance between state action to fulfil their duties and parental autonomy.

As is typical with new legislation, appropriate police and judicial discretion is crucial. Despite the Department of Education's statement that the UK Government has no plans to change the law on smacking, it is perhaps inevitable all UK administrations will align. An amendment to the Children’s Wellbeing and Schools Bill was introduced in January, and if it gets enough support, a total ban could follow. Regardless of individual views, such a change would ensure a consistent legal stance and reduce confusion.

There have been no prosecutions of parents for minor acts like tapping their child's hand, notes David Duncan

In the five years since the Scottish ban, there have been no mass criminalisation of well-meaning parents. Most people can confidently say that they understand and adhere to the law. I believe that is a good thing.

David Duncan is a Partner, Duncan & McConnell