An abuse of power and strength—or a part of family life that the law has no right to intervene in?by Prospect Team / December 10, 2019 / Leave a comment
Yes: Susanna Rustin
The answer is yes. It might seem slippery to start with semantics, but one of the problems with this subject is the terminology, and specifically the idea that smacking is somehow distinct from hitting, thumping or punching.
In previous centuries, when corporal punishment was far more common, smacking or spanking were understood to be the gentler, domestic version of what might in other contexts be a beating, caning or flogging (the last prison flogging in the UK was in 1962). There may still be a small minority of parents who administer physical punishments in a planned way. But these days, when we talk about smacking, we’re mostly talking about mothers, fathers and carers losing their tempers and lashing out.
Anyone who has done this themselves (and I am sorry to say that I have), or read any number of memoirs or stories about growing up, will have noted the outrage and humiliation that such outbursts leave behind. Children know they are smaller and weaker than adults. Physically attacking them is an abuse of power and strength.
That it is still allowed in England, Wales and Northern Ireland (Scotland banned it in October) is a cruel anachronism of which I am certain that we will soon all be ashamed. We are already an outlier in Europe, where most countries have legislated against corporal punishment in line with Article 19 of the UN Convention on the Rights of the Child, with its call for equal protection from assault.
And this is the key point. Assault is already illegal. Talk of a smacking ban is misleading because no one is proposing to create a new offence. All that needs to happen is for the defence of “reasonable punishment” in the Children Act 2004 to be stripped out. Then assaults on children would be treated in exactly the same way as assaults on anyone else. Honestly, how can it be justifiable, in the eyes of the law or anyone else, to physically attack or hurt someone smaller, when it isn’t to attack a grown-up?
No: Lucy Denyer
You’re right, semantics do matter. As you point out, assault is already illegal in this country, and an assault on a child—or anyone—is utterly indefensible. But a smack is different from a beating, or a caning, or a punch. I agree that smacking often involves mothers and fathers losing their tempers with their child. But when that happens, or when a smack is for another reason—because, say, they’ve run out into the road without looking and you want to shock them into realising how dangerous that is—would you count that as assault? As in, a punishable, potentially jailable offence?
This is important. Because by equating smacking with something far more serious that is already proscribed by law, we are moving into the realm of controlling family life and dictating to parents how they should bring up their children. You can take issue with smacking and whether it “works” or is something that parents should do. I happen to think that it is generally counterproductive. But I don’t think that banning it—or stripping out an existing legal defence—is the way to stop parents smacking.
For a start, doing so raises many more questions than it answers. How do you police this? Whose word will be believed? In the worst case scenario you could have an otherwise good parent, trying to do their best for the children, being hauled up in front of the courts. You’ve admitted to smacking your children. I confess to smacking mine. I don’t know a single parent who’s never lost their temper with their child, and very few who haven’t resorted to a short, sharp smack on occasion. Is hauling us up in front of a judge really going to provide the best outcome for family life? Surely it will just make us more fearful—and scared parents don’t make great parents.
That doesn’t mean to say we should smack away merrily with impunity. There are many reasons why we shouldn’t smack our children. But the best way to stop parents smacking is to educate them as to why it doesn’t work—the carrot, not the stick approach.
I agree that education is important and, like you, generally favour carrots over sticks. The good news is that the number of parents who hit their children is widely accepted to be falling around the world, as called for by the UN Convention.
You and I agree that when children are struck these days, it’s mostly because an adult has lost it. I’d never admit to “smacking,” by the way, as I think it’s an unhelpful euphemism. But yes, I’ve slapped my daughter’s leg. (She’s also offended by any rough handling such as an angrily firm grip. I suspect many children would have interesting things to say about behaviour like this.)
But that’s where the agreement between us ends. You say that any assault is utterly indefensible, but that’s wrong. An assault on a child is permitted if a court classifies it as “reasonable punishment.” While this law has ancient origins, a key development was the trial in 1860 of a teacher who flogged a child to death. Though the teacher was convicted of manslaughter, the judge asserted that more “reasonable” beating was allowed.
The fact is that violence used to be far more prevalent. Assaults on servants, wives, schoolchildren and prisoners were all once legal and the way I see it, the right to smack children is the last redoubt. I’m not saying that every child who is hit will be scarred forever, and in some cases emotional cruelty could be worse.
But what is this insistence that adults are entitled to hit children all about? If it’s because you fear that ordinary, hot-tempered mothers and fathers will be rounded up in supermarkets, you can relax. Similar fears were raised before the law changed in New Zealand and it didn’t happen. That idea of the panicking mum dragged off in handcuffs after smacking a naughty toddler who has run into the road is a myth.
This is absolutely not an insistence that adults are morally entitled to hit children. As you point out, the number of parents who strike their children is falling around the world. That’s a good thing. We’re more aware of the effect that smacking—and yes, I’m going to continue to call it that—and other things like shouting at our children can have on them. Long may parents continue to learn new restraint.
But we’re talking here about the role the law should play in family life. And we need to be very clear about what this means. You tell me to “relax” when I worry that ordinary, hot-tempered parents—like me, and you—might be rounded up in supermarkets, as this hasn’t happened in New Zealand.
I’m not sure you’re right. A report by NZ law firm Chen Palmer, which conducted an audit of the change to legislation in 2018, pointed out inconsistencies between politicians’ promises that it would not criminalise “good parents” for “lightly smacking” their children and the eventual legal effect, concluding “the amendments to section 59 have criminalised parents who smack their children, even if only lightly, for the purposes of correction.” It identified the difficulty that police, prosecutors and judges had in upholding the law and ensuring a proportionate response.
Moreover, it detailed one case of a former British national who did admit to gently smacking his two sons, and was convicted. The Court of Appeal later quashed his conviction, but in the meantime he lost custody of, and contact with, his sons. Chen Palmer pointed out that his offending “lay in his administration of about a dozen smacks in total to his sons in the two-and-a-half-year period covered by the offending. He used his hand, not a weapon.” Four or five smacks a year—for which this man lost his sons. Even the NZ minister for children admitted that the changes had “a chilling effect on parents.”
Banning smacking poses two dangers: one, confused parents, and two, people’s children being taken away from them. Both undermine hopes of engendering better relationships between parents and their children—which is surely what this whole argument is about.
Children in the UK are only ever removed from their parents when a judge is convinced that this is in the child’s best interests. Judges would retain discretion even if violent punishment were outlawed. The fact is that England is an outlier: Scotland, Wales and every EU country except the Czech Republic has either passed legislation or is considering it.
Of course you’re right that what is at stake is the role of the law in family life. I suspect this is the big philosophical difference between us. While you are instinctively against state interference, I positively welcome the idea that different laws could help us to be our best selves. We have laws against smoking cannabis, driving too fast and sending malicious letters: why on earth wouldn’t we have one to stop us from lashing out at our kids?
The other point I want to make is more serious: what about children who are vulnerable and families where violence is a habit? I know it’s unpleasant to think that there is any connection between our parenting lapses and the kinds of attacks we would classify as abuse. But research suggests that where children are gravely mistreated, the cycle often starts with physical punishment. Given the extent to which children are harmed, shouldn’t the government send the strongest possible signal that all violence against them is wrong? Sweden, the first country to impose a ban 40 years ago, has one of the lowest rates of child cruelty and homicide in the world.
I don’t see why anyone need be confused by any of this. In fact, it would make life simpler: no assaults allowed on anyone. That’s it!
If we accept that existing legislation already covers serious physical abuse of children, and that changing the law to extend to smacking isn’t actually going to have any real-world effect on parents who resort to it, what does doing so achieve?
Because you are right, this is the big philosophical difference between us: I don’t think that legislating on absolutely everything is necessarily the way to help us be our best selves. I think educating parents on why smacking isn’t a good idea is a better approach.
When it comes to vulnerable children at the mercy of malicious parents, counterintuitive though it might sound, there are actually serious concerns that a smacking ban would make the job of police and social workers more difficult, distracting them from genuine cases of abuse. The Welsh government, when discussing plans to implement a smacking ban, estimated that 548 people a year would be investigated—a significant number of additional cases for child protection professionals to pursue. Now, that’s fine if you’re going to employ thousands more social workers, but identifying at-risk children is already like finding a needle in a haystack. Making the haystack bigger does not make them easier to find.
And how is this going to be policed anyway? Are we all suddenly going to be reporting our neighbours to the authorities? It’s all too easy to imagine someone who bears a grudge shopping an acquaintance for a slap on the leg. That’s the frightening reality of where this could lead.
It’s already possible for adults and children alike to report concerns about physical abuse, and for that to be investigated. Let’s not criminalise the rest of the vast numbers of parents who are doing a good job.