A Smack in the face for Discipline
Should parents be able to smack their children? Can smacking ever be justified?
There has been pressure to ban smacking. For example, in 2006 a report by the anti-smacking Children Are Unbeatable! Alliance, a group of organisations working with children, sought abolition. They suggested that smacking was a breach of children's human rights and also the United Nations Convention on the Rights of the Child and the European Social Charter. Lord Kinnock, the former Labour leader was strongly in favour of a ban. Many Labour MPs wanted this change, but the government did not. Others spoke in favour of the need for discipline and parental correction as not inconsistent with love and affection.
The present legislation effects a compromise. The Children Act of 2004 removed the defence of "reasonable chastisement" from parents who caused injury to their children. Injury could be visible bruising, (however minor), grazes, scratches, minor swellings or cuts. The potential sentence could be a maximum of five years in jail.
The Sentencing Guidelines Council, headed by the Lord Chief Justice, Lord Phillips, sees difficulties in the potential punishments and effectively suggests that some parents should be treated leniently. This is in circumstances where the parent does not intend to hurt their child. The suggestion is that parents who do not mean to harm their child should not face imprisonment. (Of course if smacking is itself legal, but not smacking which leaves to a faint bruise, then it may be mere happenstance and indeed contrary to the intention of the parent if a slight injury is caused thereby).The Council view was the courts should still have regard to the "reasonable chastisement" doctrine and that if there was no intention to cause injury, that should be "substantial mitigation". Even more strikingly it was suggested that where injury was not only neither intended nor foreseen, but not even reasonably foreseeable, then a discharge might be appropriate. A conditional or absolute discharge is at the very lowest end of the scale of punishment of course.
It is unsurprising that the Sentencing Council has taken this view. There is an obvious problem with legislation which tries to do all things for all sides. With considerable pressure on the prison population, it frankly seems bizarre to contemplate sending anyone to prison for smacking if they neither intended nor anticipated nor should have anticipated that some form of injury would follow. Even if there were not such pressure, it is difficult to discern what public benefit would be served by imposing such a sentence in such a case.
The whole point of reasonable chastisement was that it should be just that, reasonable. Nothing in that law permitted serious assault or the infliction of injury on children. Any such actions could already have been dealt with under the existing law. The whole purpose of the change was an attempt to placate those who want a complete ban, without actually giving it to them.
If one accepts that the essence of the doctrine of reasonable chastisement is a need to act reasonably, it is difficult to see that that should be described as reasonable. In the present age can it confidently be said that the discipline and behaviour of youngsters is such that they can be kept in control without an ability to resort to such punishments? In most households smacking will be rarely if ever used. However the fact that it could be is still an important part of discipline. As long as it is not of a severity likely to cause injury, there seems no public need to remove this, and considerable reason for concern as to the consequences were it removed.
The government has no intention of removing smacking, but has led to a situation where in arbitrary circumstances it can lead to criminal proceedings. It is unsurprising in those circumstances that sensible sentencing guidelines seek to ensure that punishment is not disproportionate. In reality slapping, within the bounds of reasonable chastisement as described, should not be within the province of the criminal law. To make it so, even in the slightly turgid and indirect way that the Children Act of 2004 does in some circumstances, is already being shown to cause far more problems than it solves.