‘Justifiable Assault’ is No Longer a Defence

In Scottish Law, a defence of ‘reasonable chastisement’ once allowed parents the use of physical force when disciplining their children.

But, Scotland’s ban on child smacking removes the consideration of using ‘justifiable assault’ as a legal defence.

The primary purpose of the new child smacking ban is to provide under sixteen-year-olds with the same protection from assault that adults get.

Anecdote: Sweden outlawed corporal punishment in 1979 and became the first country to ban smacking in the home. From the 7th of November in 2020, Scotland became the 58th country to follow suit.

The NSPCC is one of the foremost children’s charities in the UK. They described the ban on smacking children by Scotland as ‘common sense’.

They also said that the new law makes it clear that ‘physical punishment should no longer be part of childhood in Scotland’. It helps to mark Scotland as a country where the rights of children and youngsters are recognised and respected.

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Making Violence Unacceptable in Scotland

In fact, it was a former police officer (also a Scottish Greens MSP) who introduced the smacking ban bill to the Scottish Parliament. He did so with extra support from the SNP, Labour, and the Liberal Democrats.

His view was that smacking children teaches them that ‘might is right’. Hence, outlawing it would ‘send a strong message that violence is never acceptable – in any setting’.

In case you were wondering:

There were some that opposed the law change, stating that the changes were ‘unnecessary’. They said existing laws were robust enough to protect children from abuse by parents.

Their view is that changing the rules for child discipline and punishment would not help young victims of serious physical abuse.

Furthermore, it may actually cause traumatic interventions for some families who use a smack on the bottom as a reprimand for wrongdoing.

Note: The children’s news section contains more headline stories and articles about the rules and regulations that affect children and babies in the United Kingdom.

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Physical Punishment of Children: Previous Law

So, how did the courts decide whether the chastisement of a child below the age of sixteen was reasonable – or not? In fact, the courts would take several factors into account, including the:

• Nature of the actual punishment (e.g. physical or mental).
• Child’s age (and the physical and mental effect it had on them).
• Duration and frequency of punishments administered.

As a general rule, it meant parents had some defence for smacking their children on the body. Nevertheless, it was illegal to make blows to the child’s head, shake them, or use any kind of implement as a weapon.

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The End of ‘Reasonable Chastisement’

The bill ends the use of ‘reasonable chastisement’ as a legal defence in Scottish law. As a result, parents might face prosecution for any use of physical punishment (often called corporal punishment) on their children.

It includes various circumstances, such as hitting, smacking (e.g. with a hand or an implement), and slapping. It bans kicking, shaking, and throwing children through the air.

Parents must not scratch, pinch, bite, pull hair, or box their child’s ears. They must not force children to remain in an uncomfortable position. The new law also targets other serious harms such as burning, scalding, and forced ingestion.

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How Common is Child Smacking?

Compared to many other countries, including Germany, Sweden, the USA, and Canada, child smacking statistics found the physical punishment of children as being more common in the United Kingdom (2015).

Research suggests 70% to 80% of parents had used physical punishment (UK). The most likely age for a child to get smacked was between the ages of three (3) and seven (7).

Most parents said they did not view smacking as a ‘good thing’ as a form of punishment. Instead, they believed it was often the ‘only thing that worked’.

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Child Smacking Law Elsewhere in the UK

Wales will hold an assembly vote to bring in a new law banning people from smacking their child. We understand that it will come into full force in 2022.

Even so, parents in England and Wales could face criminal charges for hitting a child with such a force that it:

• Leaves a mark
• Causes:
  • Bruising
  • Cuts
  • Grazes
  • Swelling
  • Scratches

In England, the Association of Educational Psychologists say smacking is harmful to the mental health of children – and it should be banned.

Northern Ireland shares similar legal provisions to those currently in force in England and Wales. In fact, Ireland banned child smacking in 2015.

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