New smacking ban legislation for Scotland: Everything you need to know

An enactment of a mother being physically abusive towards her daughter. Picture: Monkey Business Images/REX/Shutterstock
An enactment of a mother being physically abusive towards her daughter. Picture: Monkey Business Images/REX/Shutterstock
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Scotland is set to become the first country in the UK to ban parents from smacking their children under new laws unveiled today.

Here is all you need to know about the proposed law change;

READ MORE: Smacking to be outlawed in Scotland as ban is backed

READ MORE: Poll: Should smacking be banned in Scotland?

What is the current law?

Under the Criminal Justice (Scotland) Act 2003, Scottish law currently prohibits parents from shaking their child, striking their head and from using an "implement" during punishment. But defences of "reasonable chastisement" or "justifiable assault" can be used in court by parents who physically punish their children. Courts determine whether the punishment is "reasonable" or "justifiable" based on factors such as nature of the punishment inflicted, the circumstances, the physical and mental effect on the child and the child's age.

Aim of the new legislation

The Children (Equal Protection from Assault) (Scotland) Bill will prohibit the physical punishment of children by parents and others caring for or in charge of children. It will give children equal protection from assault by abolishing the existing defences that parents can use to justify the use of physical force to discipline a child. Those backing the bill say a wider aim of it is to redefine what is acceptable in terms of how to punish children and encourage other methods of parenting.

The legal effect

A person charged with assault of a child will no longer have the defence - in either criminal or civil proceedings - that the use of force constituted "reasonable chastisement" or "justifiable assault."

Who proposed the new legislation?

Highlands and Islands Green MSP John Finnie formally lodged it today at Holyrood.

Next Steps

The bill has been openly backed by the Scottish Government. SNP MSPs will be told by party whips to back the bill and Labour has confirmed its MSPs will also back the measures, meaning the legislation is set to pass at Holyrood in the next year. Part of the bill itself will require Ministers to promote public awareness and understanding about the effect of the new legislation. This may, for example, involve a nationwide publicity campaign aimed at parents and carers, promoting a move towards non-physical methods of child punishment.

Who is saying what about the new legislation?

Mr Finnie said he was "delighted" to be bringing the bill forward today, adding: "Children deserve the same legal protection from assault that adults enjoy, a position that children’s rights organisations and charities have long been arguing. Substantial academic research from around the world shows that physical punishment does not work and is shown to be counter-productive. My bill aims to support parents to make positive choices."

He stressed it will not change the way that police and social work deal with assault against children and, rather, would establish the principle that assault can never be "justifiable."

The new legislation has the backing of First Minister Nicola Sturgeon, the Scottish Police Federation, Barnardo’s Scotland, the Church and Society Council of the Church of Scotland and the NSPCC. And a previous consultation on the bill received more than 650 responses and nearly 75% supported it.

A spokesman for the Scottish Conservatives said the current legislation "works well" and is "based on common sense," but their members will be given a free vote on the matter.

The spokesman added: "In law there is, quite rightly, a very clear difference between the definitions of violent assault and reasonable chastisement.

"The former is a criminal offence punishable through the courts, the latter is a matter for parents as they decide how to discipline their children.

"Each Scottish Conservative MSP is entitled to vote with their conscience on this issue."

Other parts of the UK

No other parts of the UK have banned smacking, but proposals are currently going through the Welsh Assembly. A background paper published alongside the bill says the UK is one of only six EU countries to allow smacking. In England, Wales and Northern Ireland parents are allowed to use “reasonable chastisement” as long as they do not leave a mark, swelling, cut or bruise. Scotland would join the many other EU nations with full smacking bans, and the big question now is whether the other UK countries will follow suit.