Is a smacking ban practical or reasonable interference?

Is a smacking ban practical or reasonable interference?

by Elizabeth Smith
article from Monday 23, October, 2017

THROUGHOUT MY TIME in Holyrood I don’t think any constituent has ever approached me about the issue of smacking children. I suspect most of my colleagues across the political divide will be in the same position.

We have, however, from time to time been approached by those who say they are members of the “anti-smacking lobby” or by those who say they are in the “pro-smacking lobby”. In my view, this is not particularly helpful terminology - nor in some cases is it accurate – but we will hear lots from both groups as the Scottish Parliament considers John Finnie’s Member’s Bill. Like any other Bill, it is important that MSPs listen to views on both sides of the argument and also study the facts.

Naturally, however, we will begin that scrutiny process from our own current standpoint which, in my case, is the belief there are already good laws in place which have, as their underlying principle, the view that the primary responsibility for raising children lies with parents and families, not with the state. That responsibility includes the disciplining of children. In the words of the Family Education Trust; “Parents and guardians must retain the fundamental freedom to bring up their children in accordance with their beliefs and values. The role of the state in the nurture of children is strictly ancillary to that or parents or guardians.”

I agree with that.

Those who recall the earlier parliamentary debate on smacking brought forward by the Liberals’ Jim Wallace, will remember some key points that were raised at the time and which led to agreement about the current legal position.

Firstly, there was widespread agreement that hitting a child with an implement or striking them by force to leave a mark or shaking them was not acceptable. “Reasonable chastisement” on the other hand, was seen as just that – reasonable.

To the Parliament at the time, and to the wider public, the law agreed then made clear the boundary between smacking and unjustifiable assault. That statement however, is not accepted by those who now want to ban smacking. They believe there is no clear boundary and that smacking can be easily defined as assault. I fundamentally disagree with them and I do so because I believe that the existing laws in Scotland are very clear about what constitutes criminal assault. Those who criminally assault anyone – child or adult – will be dealt with by the heavy hand of the law – and rightly so.

Are we really serious about saying that those parents who wish to smack their child because they have put their hand near boiling water or live electricity or who have been about to run out onto the road will be guilty of a criminal offence? And are we really saying that we could effectively police that situation, most especially at time when the police have so many other pressures upon them? Indeed, this concern about criminalising parents was probably the biggest issue in the last parliamentary debate. I remember the late David McLetchie making a powerful speech about this very issue and the repercussions it could have.

Secondly, the debate puts us back in the territory of what is the appropriate boundary between the parents’ right to bring up their children in the context of Article 8 in ECHR which respects the “right to private family life”, and what should be the role of the state. We need look no further than the utter failure of the named person legislation in this regard – which is the main reason why there was such public outcry against it and why it has now hit such enormous difficulties in Parliament.

The Supreme Court ruled that the information sharing aspect of named person legislation was unlawful because it left far too much scope for interference in family life. The same principle, albeit for a different policy issue, could apply to a smacking ban. That is undoubtedly why many parents have reacted angrily about yet another attempt to persuade us that the state, rather than parents, knows better how to bring up our children.

But the third issue is about workability of any potential legislation and again, I think this is where there will be serious difficulties. If it’s true that a large number of parents in Scotland do choose occasionally to smack their children, how on earth are we going to check that a new law banning smacking could be enforced, especially when the vast majority of smacking happens in the home? When this point was put to someone advocating a ban on smacking on a radio phone-in the response was that “That’s not a problem. It is surely a case of trusting the vast majority of parents to act responsibly.” The irony about trusting parents was not lost on the subsequent contributors to the phone-in.

Like my colleagues, I will listen carefully to the points put by those who wish to ban smacking and I will also scrutinise John Finnie’s Bill very carefully. But I can’t help feeling – just as I did at the time the named person proposals appeared – that parents themselves will be the best judge. They were right last time and they will be right this time.

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