Smacking ban: 'We don’t hit children from a rational place'

In 1982, two Scottish mums emerged victorious from the European Court of Human Rights in Strasbourg.

After six long years, during which they faced a sustained campaign of abuse against themselves and their families, they had finally won a victory for their children, for their children’s children and for children across the country.

Despite the odds being against them, Jane Cosans and Grace Campbell had single-handedly succeeded in ensuring corporal punishment was banned from UK state schools, putting an end to the culture of fear many pupils felt in the classroom.

This monumental victory saved thousands of pupils from facing the infamous tawse for stepping out of line in school – but, ironically, the ruling did not save children from the same kind of fate within the supposed safety of their own homes.

It is only now, several decades down the line, that children in Scotland could be spared physical punishment in the home, if a proposed ‘smacking ban’ becomes law.

The Children (Equal Protection from Assault) (Scotland) Bill, as it is more officially known, proposes to remove the defence of ‘reasonable chastisement’ to give children the same protection from physical assault as adults.

“We don’t hit children from a rational place, that’s absolutely clear. We do it when we’re in a heightened emotional state, when we’re stressed, when we’re under pressure,” explains leading children’s rights advocate Jillian van Turnhout. “I don’t think that my repertoire of how to deal with a difficult situation when I’m dealing with adults should involve hitting them, so why all of a sudden should it come into my head when I’m dealing with someone smaller, more vulnerable than I am?”

Van Turnhout seems the most unlikely person to ever turn to violence. She is calm, amiable and, above all, resolute in her belief that smacking children cannot be justified under any circumstances.

A former Irish senator, she was responsible for the implementation of a smacking ban in Ireland. Or, to put it more accurately, she was responsible for the country repealing the defence of ‘reasonable chastisement’.

She is now advocating on behalf of children in Scotland as a series of experts, organisations, charities and religious groups flock to Holyrood to give evidence on the proposed bill to the parliament’s Equalities and Human Rights Committee.

In delivering her own submission, van Turnhout told MSPs how the change in law has worked in Ireland and how the sceptics now believe it was the right thing to do.

Speaking to Holyrood after giving evidence, she says: “If we look at the law on a very simple basis, it was saying that if someone is smaller than you and more vulnerable than you, you would then have a right to hit them.

“So, changing the law was about repealing the defence of ‘reasonable chastisement’ because it’s horrible to think that we have legislation that condones any level of violence in the home.”

Van Turnhout adds: “I made an amendment to a piece of legislation that was going through the houses. When I made that amendment, I did not know whether I had one colleague or all of my colleagues in support of that amendment because I was an independent member of our parliament.

“As a children’s rights advocate, I wanted children to know that there was at least one person in parliament who believed they should not be hit. Much to my great surprise – and it was a wonderful moment – not one single member of parliament spoke against the amendment. We really had cross-party support and the government joined me in the amendment that I had brought forward, so it was a really positive moment to ensure that children have equal protection in the eyes of the law.”

In Scotland, the proposed change in law has been met with resistance by those who believe it would criminalise parents and lead to “unreasonable state interference in family life”.

Campaign group Be Reasonable Scotland, supported by the Christian Institute and the Family Education Trust, deems smacking as “loving parental discipline” and warns children could be removed from their parents “merely on the suspicion of having been smacked”.

Furthermore, it states that 99 per cent of parent submissions to the Holyrood committee examining the arguments for and against the proposed bill are against it.

Despite the Church of Scotland speaking in favour of the bill – stating that Jesus would not condone smacking children – some smaller faith groups, including the Christian Institute, the Evangelical Alliance Scotland and the Free Church of Scotland (Continuing), have lodged their objections.

In giving evidence to the Holyrood committee, Rev Richard Ross, from the Free Church of Scotland (Continuing), said: “The bill will provide a net that will catch loving parents because it will be spread so wide.

“It represents an intrusion into family life that does not belong to the state. Children are given to the parents to bring them up. It does not belong to the state to tell parents at what level they are to deal with their children. Parents are best suited to bringing up their children.”

He continued: “We are talking about a God-given right. Parents – not somebody on the outside who is looking in – are best placed to decide how to bring up their children.”

Perhaps surprisingly, given Ireland’s strong religious background, van Turnhout says there was not the same level of opposition there, and even the Catholic Church opted not to get involved in the debate.

“In Ireland, we didn’t have a concentrated campaign in opposition, though we had some individuals who spoke out against it,” she explains.

“It’s important to note, similar to what I’m hearing here in Scotland, I was counselled and advised by my colleagues, by random members of the public, by some civil society organisations, saying the time is not quite right, we need to do more education, we need to do more awareness-raising, we need X, Y and Z reasons.

“But the moment we changed the law, it was like a light switch. The very same people looked me in the eyes, without any irony, and said: ‘Why didn’t we do this years ago, this makes so much sense’. They were celebrating the change in law.

“I’ve read the opposition [in Scotland] and there is no evidence base to the opposition and I think they’re having a disproportionate influence on your legislation. I’m meeting members of the public here and I’ve talked to many different types of groups right across the spectrum and they’re all supportive of this change in law. And we have to be careful we don’t amplify what the opposition are saying. Would we listen if we now said that putting seatbelts on children is interfering in family life? We would say it is so absurd and I feel the same way about hitting children. It is absurd.

“We need to equip parents in that really important role that they’re playing, give them the positive tools, but make sure homes are free from violence. It should be the safest place to go to and yet you have a law that says the safest place would be the place you could most likely be hit in Scotland.”

Van Turnhout says that one of the most positive outcomes of repealing the defence of ‘reasonable chastisement’ in Ireland has been the clarity it has provided to those working in social work, the police force and the public prosecutions service.

“For social workers, public health nurses, when they’re engaging with families, they said that before the law changed, they had to have a moral discussion with parents – ‘it’s not a good idea, you really shouldn’t’. It was very fuzzy.

“They couldn’t say, you cannot hit. With the law changed, it was dramatic, they had this clarity. They could say, you’re not allowed to hit your children but let’s talk about what you can do. So, it changed the dynamic of that relationship. It doesn’t lead to any increase in prosecutions, that’s erroneous when people come out with that, we have no trends, nothing to show any increase.

“So, it’s having that clear message in law that says you can’t do that, but here’s what you can do, let’s start talking about what you can do and what actually works for children, what has a positive effect for children.”

And it is this provision of clarity that forms the basis of the Law Society of Scotland’s contribution to the debate.

Its submission states: “It is not for the Society to comment on social policy that is being brought forward by the bill though we welcome the clarification of the criminal law that the bill is seeking to provide. 

“The public has a right to know what they can and cannot do insofar as the criminal law is concerned. As the law stands, it is a matter for the defence, if appropriate, to establish on the basis of the evidence presented at court, if the defence of ‘reasonable chastisement’ is made out.

“Each case, as it arises, will be considered on its facts and circumstances. Attitudes towards the verdict of a case that involved the defence of ‘reasonable chastisement’ will vary as there may be a feeling from the outcome, whether an acquittal or not, that justice was not necessarily achieved.  

“The bill, as presented, would increase that clarity.”

Van Turnhout says there has only been one case which has resulted in prosecution since that clarity was provided in Ireland, which she believes simply highlights the fact that violence against children has become culturally unacceptable.

Mary Glasgow, chief executive of Children 1st, which has campaigned for this reform along with other children’s charities, says the same is likely to happen in Scotland where the bill would not lead to a rise in prosecutions, despite the scaremongering.

“In Ireland, removing the defence of ‘reasonable chastisement’ has helped relationships between parents and social workers and there has been only one prosecution since the law was reformed in 2015,” says Glasgow.

“What we see in Ireland reinforces the evidence from both Police Scotland and Social Work Scotland that their response to assaults on children will continue to be proportionate and there will not be a significant increase in prosecutions.

“Given the level of hyperbole from the Christian Institute and others around the bill, it can be easy to forget that it does not create a new criminal offence. It gives children, the weakest members of our society, the same protection as adults.

“As so many of the witnesses giving oral evidence to the committee emphasised, above all, this reform will bring the law into line with the evidence about the harmful impact of physical punishment which will benefit children, parents and communities.”

One of the most common arguments from opponents of the bill comes from those who say they were smacked and it “did me no harm”.

Perhaps ironically, the bill’s proposer, Green MSP John Finnie, has himself admitted to occasionally smacking his own daughter, SNP MSP Ruth Maguire, who chairs the Equalities and Human Rights Committee.

But van Turnhout says whether you were smacked as a child or not, or whether you smacked your own kids or not, is irrelevant and all that matters now is how we raise children today and in the future.

“When we were having the debate, many of my colleagues said that they did not wish to put on the record how they brought up their own children, however, they would never want anyone to hit their grandchildren, so very much clearly articulating that generational shift that we have.

“For me, this change in law was not a judgement on how I was brought up, it was a different time, so let’s not put the lens of today on the past, but equally, let’s not let the past drag us down.

“I wasn’t smacked but I was brought up with ‘you’re never too old for the wooden spoon’. I was chased around the house, though my brothers would testify that they were chased around the house more than I was. Now, we never actually got hit, but the wooden spoon was definitely threatened. So, I grew up in that culture.

“With all the evidence that we now know, it’s really important that we take that in. We know that hitting a child either has no effect or it will have a troubling detrimental impact on a child. When something has no effect, what do you do? You either stop doing it or you try harder. And when people are trying harder by hitting children harder, we really are putting children at risk.”

And it’s not just the physical risk that causes real concern for van Turnhout and other supporters of the bill. It’s the emotional impact that being hit by the people who are supposed to love you more than anyone in the world that is often the most difficult part for a child to process.

“If you think about it from the child’s perspective, when they’re hit by somebody they love, they are so stunned that everything that happened before the moment they were hit is gone,” explains van Turnhout. “There’s no cause and effect that they say, ‘well, I did that and therefore I got this’. They are so stunned, they are emotionally hurt that somebody they adore has done this to them.

“It’s also saying to a child you don’t talk about problems, you don’t learn how to calm down. We’ve all had to learn in life how to de-escalate the situation, de-stress. We’re the rational adults, so it’s really important to pass that onto children.

“One hundred years ago, we would say in Ireland you’re allowed to hit your wife, your dog and your child. We have thankfully changed our laws, but it took us 100 years in relation to children.”