Equal protection is about justice, not parenting styles

“I was smacked, and it didn’t do me any harm.”

This is the most common argument against what many call a ‘smacking ban’ being introduced in Scotland.

It is the right of any parent, they argue, to raise their child using the methods they know work.

Unfortunately, all the evidence now shows that smacking doesn’t work, fosters aggression and violent behaviour and, most importantly, does do children harm.

For the purposes of transparency, I wasn’t smacked as a child, and neither was my daughter, but I understand and have been in the situation as a parent where you feel out of options and control and feel the urge to raise a hand.

I’m glad I didn’t.

The Royal College of Paediatrics and Child Health is clear on this. Physical punishment impacts on mental and physical health.

If someone feels it didn’t do them any harm, then it is probably because other factors in their life such as financial stability and the presence of loving relationships provided a resilience that allowed them to minimise that harm.

For those who don’t have those elements of security, it can be the start of a lifetime of violence.

But the heart of the case for the proposed legislation to remove the defence of ‘justifiable assault’ isn’t about parenting styles anyway. The clue is in the name, ‘equal protection’.

Paediatricians, the Children’s Commissioner and all the researchers who have spent decades on this aren’t interested in giving moral lessons to parents on the rights and wrongs of parenting. To suggest they are is insulting to their work.

They are interested in protecting children from harm, and in the case of the commissioner, upholding their rights.

Bruce Adamson is an experienced human rights lawyer, giving advice to the United Nations, European Union and others.

Obfuscation about how the law will work on the ground, what police officers should be looking out for, what constitutes ‘smacking’ and so on are irrelevant, because it focuses on what campaigners call “a wee tap on the hand”. 

The reality is that, as things stand, people are appearing in court because of harm they have caused their own children and their solicitors are arguing that the assault is “justified”. 

As Police Scotland told MSPs of the Equalities and Human Rights Committee, criminal law is concerned with assault, not parenting, and the bill removes a defence which allows children to be assaulted for the purpose of punishment. Assault will now be treated as assault. A “wee tap on the hand” will still be a “wee tap on the hand”.

In her last Programme for Government, Nicola Sturgeon promised to embrace the United Nations Convention on the Rights of the Child (UNCRC) into Scots law.

This will mean services and the Scottish Government will be compelled to take “all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.”

Traditional practices like justifiable assault? “There is no ambiguity. It is unequivocal,” Adamson told MSPs in relation to whether the UNCRC applies.

There is no coherent argument for that defence to be maintained, and if Scotland is really going to incorporate the rights of the child into Scots law, this is the most obvious place to start.