By Raymond Arthur, Professor of Law at Northumbria University, Newcastle. With Scotland set to become the first UK country to make it illegal to smack children, the debate has opened up about whether the rest of the UK should follow suit. What is the Current Law on Smacking? The current laws in Britain today prohibit adults from smacking, pushing or shoving other adults. They also protect pets from violence. However, parents are allowed to use physical force to punish their children, provided the punishment does not escalate beyond ‘reasonable punishment’. In England and Wales, under section 58 of the Children Act 2004, parents who are accused of causing Actual Bodily Harm to their children cannot invoke the defence of reasonable punishment if their smacks cause mental harm, bruising, scratching or reddening of the skin.
Why is Smacking So Bad? Research has shown that when children are physically punished, they are much more likely to exhibitor violent and anti-social behaviour themselves as they get older. When parents engage in severe forms of corporal punishment, or administer physical discipline in the absence of parental warmth, children feel angry and unjustly treated, they defy parental authority and engage in anti-social conduct. The use of corporal punishment is, unsurprisingly, associated with significant increases in physical abuse and long-term anti-social behaviour. Parents who rely heavily on harsh punishment, or who are erratic in their discipline, are twice as likely to have children who break the law - harsh punishment is associated with more violent and more frequent offending. Parents Don’t Walk Their Talk Even though almost all parents agree that children under 2 years should not be smacked, research shows that three-quarters of 1 year olds and more than half of all babies under 1 year have been smacked. Among 4 year olds, 48% are hit more than once a week. Many children may be hit even more than their parents realise or intend since, for example, many mothers appear to be unaware of the extent to which the child’s father is smacking the child. The Slippery Slope Parents are most likely to smack their children when they are angry and under stress. In 2000, the House of Commons Health Committee was responsible for examining the factors that led to the death of Victoria Climbié, an eight year old child who died having suffered 128 separate injuries inflicted over a period of several months at the hands of her guardians. The committee found that punishment of the child started with ‘little smacks’ that escalated into abuse and eventually ended in her death. It observed that: “…not all other countries seem to have the same problems with child abuse as Britain does. The experience in Sweden, for example, which has long outlawed the physical punishment of children, is one in which child deaths from deliberate harm by adults are now unknown.” So Other Countries Already Ban Smacking? Yes. The position in the UK is increasingly at odds with its European neighbours. 24 European countries have abolished parents’ right to use any forms of physical punishment: Albania, Austria, Bulgaria, Croatia, Cyprus, Denmark, Finland, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechstein, Luxembourg, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden and Ukraine. In these countries, levels of violence against children is lower than in the UK, there are fewer prosecutions for violence against children and fewer children are taken into care. The Problem with ‘Reasonable Punishment’ The inclusion of ‘reasonable punishment’ in the Children Act 2004 makes the law on smacking too vague. It leaves police, lawyers and prosecutors with the task of deciding when hitting is hurting a child, physically and mentally. How is a parent to know what degree of force to use? Will parents know the precise force and velocity required to hit a child without causing a bruise? Whether a bruise is created or not is often the test used to determine if a smack has been too hard, but this ends up treating different children in different ways, as some children bruise quite easily, whilst others may only bruise after a severe smack. Aside from the issue of enforceability, the lack of clarity in the law means that it fails to send out a clear message about what behaviour is unacceptable in families, or what society feels about violence. The Health Committee urged that an outright ban could be educative rather than punitive, such as the compulsory wearing of seatbelts for example. So a ban on corporal punishment could lead to a cut in assaults on children without a consequent rise in the prosecution of parents. The Case For Banning Smacking Entirely One hundred years ago, legal defences existed for husbands who beat their wives - it is no longer legal for a man to hit or physically chastise his wife or partner. Physically punishing children is a form of domestic violence. Children are one of the only groups in society not to enjoy full legal protection from assault - reform of the law is essential in order to protect children adequately. Such a reform would ensure that the law is clear, simple and workable, so that parents know where they stand - and it would send out a clear message about what behaviour is unacceptable in families. It would also assist in bringing up our children in a society free from violence by teaching them non-violent ways to settle their disputes, and it would bring the law into full compliance with the Human Rights Act 1998 and other international law obligations. A law specifically banning physical punishment of children by their parents need not have criminal sanctions attached - its mere existence would signal the unacceptability of physical punishment. This would help to influence social attitudes and encourage the use of alternatives to physical punishment. The unambiguous nature of an outright ban on physical punishment would also make the law easier to police and such a ban would be consistent with the UK’s obligations under international law - The United Nations Committee on the Rights of the Child has urged the UK government to promote positive, participatory and non-violent forms of discipline and respect for children’s equal right to human dignity and physical integrity6. A Brighter Future The success of families in bringing up children will shape the future, not only of those individual children, but also of our whole society. Applying appropriate discipline, in the sense of responding consistently to a child’s behaviour and setting clear boundaries, is part of bringing up children. A failure to provide guidance and set boundaries is in itself a form of neglect that can be very damaging to a child. On the other hand, discipline that is harsh can be damaging to a child both physically and emotionally. Emphasis should be placed on promoting better parenting skills and helping parents to find methods of getting children to co-operate and behave in an acceptable and appropriate manner, using means other than physical punishment. This might include, for example, keeping the child in, sending the child to his or her room, or stopping the child doing something he or she likes (such as watching the television). Physical punishment of children is the only physical assault tolerated under the law. The justification of an assault on a child on the basis of ‘reasonable punishment’ should be removed, thereby putting the child in exactly the same position as adults and pets in respect of the law.
Raymond Arthur is a Professor of Law at Northumbria University and Convenor of the Law & Society signature research area. He has published three books and over 20 journal articles on issues related to the delivery of justice for children and families, the complex linkage between parenting and youth offending and the extent to which the youth justice system in England and Wales protects children’s human rights in the light of international best practice.  SIMONS, R.L., WU, C., LIN, K., GORDON, L., CONGER, R.D. “A cross-cultural examination of the link between corporal punishment and adolescent antisocial behaviour” Criminology 2000, Vol. 38, No. 1, p.47, 48  ELLIMAN, D., LYNCH, M. “The Physical Punishment of Children” Arch Dis Child 2000, 83, 196  Phillips, B. & Alderson, P. (2003) Beyond ‘anti-smacking’: Challenging violence and coercion in parent-child relations The International Journal of Children’s Rights, 115: 175-197  Ibid., para 2.7  United Nations Committee on the Rights of the Child,2002, para 38(b)