Back in October 2019, the overwhelming approval of the smacking ban bill by MSPs dominated the headlines. One year on, the new law is officially in force, making Scotland the first country in the UK to criminalise physical punishment of children. The reform has been praised for being “a momentous step in making [Scotland] a country where children's rights are truly recognised, respected and fulfilled”. However, it has also been heavily criticised for its potential to intervene in family life and blacklist, or even give criminal records to, loving parents who pose no risk to their children.
If you are a parent, you may be concerned about how the smacking ban applies to you. You could be worried about what might happen if you were to react physically to your children, even in the heat of the moment. It is not surprising that there may be confusion; what has been considered reasonable punishment for many years is now a criminal offence. What’s more, the Scottish Government has so far taken a low-key approach to promoting public awareness of this major legal and cultural shift, so many parents may be unaware of its implications.
Here we explain what the smacking ban means for you as a parent or carer and what to do if you are facing a charge of assault as a result of this new law. If you need prompt, professional legal advice regarding any of the issues discussed in this article, please do not hesitate to contact the criminal defence solicitors at Keith J Tuck. We are here to protect your rights and fight for your best outcome. Contact us.
Previously, parents and carers could use physical force to discipline their children if their actions were considered “reasonable chastisement” or “justifiable assault”.
What was considered reasonable was not always clear cut and often depended on the individual circumstances. However, a smack on a child’s bottom would generally be treated as such. On the other hand, the previous law was clear about the type of force that was not justifiable, which included using an implement, shaking, or hitting a child’s head.
The new law, The Children (Equal Protection from Assault) (Scotland) Act 2019, came into force on 7 November 2020. It works by removing the defence of reasonable chastisement, rather than creating a new offence. What this means is that all forms of physical punishment of children (including smacking and slapping) are now against the law. If you physically punish or discipline your child in any way, you could be charged with assault.
Not specifically, however, the Government’s factsheet does make a distinction between using physical force for protection and punishment. It states that the new law does not intend to penalise parents or carers who physically restrain their child to keep them safe. An example of this is if you were to pull a child away from a busy road.
As in all cases of assault, certain defences may be available, including self-defence.
There are fears that good, loving parents could face serious criminal consequences for physically disciplining their children, even in the mildest way. Penalties may include imprisonment, a fine and a requirement to attend parenting classes. If convicted of assault, a parent will also be given a criminal record, which could have a significant impact on their life, including making it difficult to work.
Even in cases where smacking is only suspected, the intervention into private family life by the authorities during investigations could take a major toll on parents’ and children’s mental wellbeing. There are concerns that children could be removed from their parents care in some cases. This comes at a time when families are already dealing with a high level of stress and uncertainty caused by the worldwide coronavirus pandemic.
Further, the Government’s relatively quiet approach to promoting awareness and understanding of this significant change to the law (for example, compared to the efforts made around the smoking ban) could mean that many parents are caught out.
Our criminal defence solicitors will be watching closely at how the new law is implemented and will be here for any parents or carers who have any concerns about its impact on themselves and their family.
You should seek legal advice from a criminal defence lawyer as soon as you can. We understand you will be very worried, especially if this is your first encounter with the police. It is important to be aware that you have legal rights during any criminal investigation and if you are subsequently charged and prosecuted. Your solicitor is there to ensure the authorities uphold these rights. Since the implementation of this law is in its infancy and because of its extensive scope, it is particularly vital that a criminal defence specialist represents you.
We will advise and support you from the outset of any investigation. We will work passionately to help you avoid a charge and prosecution and to protect you and your family.
If you under suspicion for smacking your child or have been charged with this offence, our assault defence solicitors are here for you – 24 hours a day, 7 days a week. Our services are available to both Legal Aid and privately funded clients from Glasgow and the surrounding areas. The sooner you seek legal advice, the better the outcome is likely to be for you and your loved ones. Please do not hesitate to call us now on 0141 336 2020 or using our online contact form.