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The Law on Child Smacking

In a positive step forward, the Scottish government has confirmed that Scotland will become the first UK nation to ban all physical punishment of children, as it pledged to ensure that a member’s bill became law.

Justice spokesperson for the Scottish Greens, John Finnie, proposed removing the defence of “justifiable assault” from Scottish law to give children the same legal protection as adults.

So, when is it legal to smack a child?

Currently, it is illegal for a parent or carer to smack a child, except where this amounts to “reasonable punishment”. This defence is laid down in Section 58 of the Children Act 2004, but it is not defined in the legislation.

The circumstances of each case, including factors such as age of the child and nature of the smack, will determine whether a smack amounts to “reasonable punishment”.

Section 51 of the Criminal Justice (Scotland) Act 2003 prohibits parents from using an “implement” to physically punish; and from shaking their child or striking them on the head. The “justifiable assault” defence cannot be used in cases of severe physical punishment, which amounts to wounding, actual bodily harm, grievous bodily harm or cruelty.

The bill was backed by The Law Society of Scotland, stating it would bring greater clarity in the law by eliminating any need to interpret or define “reasonableness” in the context of a physical assault on a child.

There is a widely accepted principle that hitting children is wrong and that there are more effective ways of disciplining children and encouraging positive behaviour. Mr Finnie said: “It is especially welcome that the Scottish Government has reiterated its support for my bill because there is clear evidence that the use of physical punishment is detrimental to children’s long term health and wellbeing.”

To allow physical chastisement of children is contrary to international human rights, which prescribe that no-one should be subjected to torture or to inhumane or degrading treatment or punishment and that everyone has the right to respect for their private life. In fact, the UK is one of only four EU countries that have not committed to legal reform over the physical punishment of children.

The NSPCC has long campaigned for a change in the law. A spokeswoman said: “Closing this loophole would bring Scotland in line with dozens of other countries and give children there equal protection under the law.”

Children’s commissioners from all UK nations have backed the move and are calling for the law to be changed at national level, amid concern that legal protection from assault could vary depending on a child’s location.

The proposed change in law, expected next year, will legislate that there will be no legal justification for ever smacking a child.

Affording children equal protection to adults against assault should send a clear message about how people treat each other and will underpin Scotland’s efforts to reduce violence.

 

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This blog post was written by Carolyn Bowie, LLB and currently studying the Diploma in Professional Legal Practice.

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