Feature: Unequal Protection of Children (is no longer justifiable)

Liam Kerr MSP

Recently my friend and colleague Gordon Lindhurst MSP expressed his surprise in an article for Scottish Legal News that the matter of “parental discipline” has been brought up again, 15 years after the Scottish Parliament last debated it.

His surprise stemmed from the apparent haste: “the law as amended by section 51 of the Criminal Justice (Scotland) Act 2003 […the section which caveats the prohibition against physical punishment by permitting such where it constitutes “justifiable assault” i.e. if you smack your child, you have a defence to an assault charge…] appears to have worked well”.

I too am surprised: at why it has taken so long to revisit given that the UK has come under repeated criticism from UN human rights treaty bodies, the Council of Europe and the European Union for not honouring its international human rights commitments to provide children with equal protection from assault.

In any event, what does it mean to have “worked well”? Whilst publicly available information on the number of cases of assault against children by parents where the statutory defence is invoked does not apparently exist, the law does indeed “work” insofar as it allows parents to use physical force in discipline (albeit with some caveats) without sanction.

But what if a different starting point is taken: that physical punishment is not effective in teaching “discipline” or “good behaviour” in children? Then logically a defence which permits such a negative or counter-productive behaviour isn’t “working”.

Evidence demonstrates that physical punishment is harmful, damages children’s wellbeing and is linked to poorer outcomes in childhood and adulthood. The Scottish Police Federation adds: “evidence suggests that children who are subjected to physical punishment are more likely themselves to use violence…. [and preventing physical chastisement] may reduce violence and bullying on and by our children”.

A 2015 study of 1,600 Scottish children found that those receiving (not excessive) physical punishment before reaching 2-years-old were more than twice as likely to display emotional and behavioural problems at age 4.

Further research demonstrates that children who are physically disciplined (to a currently-not-inappropriate level) are more likely to have child-protection involvement, whilst families who use physical punishment are eleven times more likely to, at times, use “severe” methods.

A UK government review reported: “Most [children] felt … other punishments [than smacking] were more effective in bringing about reflection, changing behaviour and supporting… close relationships with parents… it was the emotional distress and humiliation that can be caused by smacking, rather than any physical pain, which children feared. Some children associated smacking with feelings of fear, shame and anger. These children were often not only dealing with parental disapproval and disappointment, but with parents losing control and their temper…. Children who experienced smacking appeared to be more emotionally distant from their parents.” The article goes on to make a philosophical argument: that removing power/discretion from parents in bringing up children and giving it to the State is undesirable. Here, I strongly agree with Mr Lindhurst that parents, not the State, should have primary responsibility for their child’s upbringing and disciplining.

Yet removing the defence does not equate to removal of parental discretion and/or a power-grab by the State. Leaving aside that the defence is not being given to the State to exercise physical punishment, at present some children have less protection from violence and assault than others, depending on whether their parents use physical punishment.

Allowing some children to be exposed to physical punishment and not others exposes a systemic inequity that can be addressed by removal of the defence. In essence, all individuals deserve to be equally protected within family units, and have their equal right to safety and physical integrity protected and asserted by society and the State. So what of the argument that the current law, appropriately, treats children as children, not as “small adults” insofar as children are not held to the same standards as adults when they “assault” each other? Arguably the family and childhood are the milieu in which children learn how to conduct themselves until they become adults and physical discipline thus performs a didactic function the absence of which “can have a lifelong detrimental effect on a child and other family members alike”?

Yet what does smacking teach? Surely the answer is “might is right”: imposing one’s will on a child through the use of force teaches that that is a legitimate means of mandating a desired behaviour. When rational argument won’t do, physical imposition of power legitimately prevails.

Zero Tolerance agree, suggesting tolerating physical punishment of children “undermines attempts to tackle domestic and sexual abuse across our society, because it tells children that violence is sometimes okay”. It is difficult to see how the aims of Equally Safe (the Strategy to Prevent Violence Against Women and Girls) can be achieved whilst there is a contradictory legal approach which says, on one hand, there is zero tolerance to violence in the home, yet an assault on a child may be subject to a legal defence of justifiability.

Removing the defence of “justifiable assault” makes explicit that violence in the home is unacceptable, in whatever form, whilst also giving children certainty that no one should harm them physically.

And arguably children would be less likely to “assault” each other if they hadn’t been shown it was a legitimate way to get one’s own way. I do share the concern of those who argue that removal of the defence risks criminalising law-abiding, responsible parents, merely for lashing out when the child runs into the road or throws a tantrum in the supermarket; and/or turns the public into busybodies, reporting every indiscretion and light tap on the hand.

But there is no evidence that a change to the law results in increased prosecutions in any of the 52 countries similar reforms have taken place. In fact, this change has actually reduced the use of physical punishment and in Ireland it prompted more parents to contact services to ask for help and support with alternative disciplining techniques.

The police are already well versed at dealing with reports of physical punishment. Brian Docherty, former Chairman of the Scottish Police Federation said: “… the Scottish Police Federation have no desire to see vast numbers of parents prosecuted for physically punishing their children… this would not be the effect of removing the statutory defence. Rather than a statutory defence for everyone, the test should be ‘were the actions reasonable and proportionate in each set of circumstances’…”

In the courts, the ‘Prosecution Code’ sets out a number of factors for deciding whether criminal proceedings should take place including: seriousness of the offence, interests of the victim and other witnesses, age of the offender, any previous convictions. In 2008, during a debate Westminster, a joint statement was agreed by various respected bodies which said, inter alia: “… there will be no change to the ‘significant harm’ threshold for formal investigation; and parents will not be prosecuted for ‘minor assaults’, as this would not be in children’s best interests”. So the justice system will not criminalise parents as a result of the removal of the defence.

And busybodies? The public do not intervene, for example, in a light or playful interaction between friends but they may stop a fight in the street. It’s important to remember that this is not a new offence, but the removal of a legal defence. The current thresholds that exist relating to adults would simply relate to children. Reform has already happened in Scotland in schools, in residential children’s homes, in kinship and foster care. This is simply the logical progression. So the removal of the “justifiable assault” defence, as a result of clear, robust evidence about the potential negative impacts of physical punishment, will send a clear message that no violence against children is acceptable, even within the family unit. Combined with widespread public information, this reform will allow society to move beyond indirectly sanctioning parenting practices which are proven not to work in improving children’s behaviour and could make it worse. The law is intended to protect all members of our society and this includes our children who deserve equal protection within it and grow up understanding that no one should hurt them. Surely that is the very least we can do for some of the most vulnerable members of our society.