Let’s fix the flaws in the Welsh Government’s smacking ban announcement
This week’s press release from the Welsh Government announcing a Bill to criminalise parental smacking contained some vital flaws.
1. UN Convention on the Rights of the Child does not mention smacking
The press release says criminalising smacking “builds on the Welsh Government’s commitment to children’s rights under the United Nations Convention on the Rights of the Child”.
But the UN Convention on the Rights of the Child does not mention parental smacking anywhere.
Article 19 says member states should take all measures to protect children “from all forms of physical or mental violence, injury or abuse”.
Article 37 says: “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”.
Everyone agrees with this. And in Wales “violence” “injury” “abuse” “torture” “cruel, inhuman or degrading treatment or punishment” of children are all, of course, already illegal.
The ‘reasonable chastisement’ defence which the Government wants to repeal only allows parents to use the very mildest form of physical discipline. Guidance from the Crown Prosecution Service makes clear that the defence only covers actions that have a transient, trifling effect. That’s a tap on the hand. Not “inhuman or degrading treatment”.
It’s also worth noting that of the 193 nations recognised by the UN, 139 allow reasonable chastisement.
2. Parents should decide, not politicians
Deputy Minister for Health and Social Services Julie Morgan said: “We are sending a clear message that the physical punishment of children is not acceptable in Wales. What may have been deemed as appropriate in the past is no longer acceptable. Our children must feel safe and be treated with dignity.”
Last time we checked, parents had responsibility for the day-to-day care of their children, not politicians. Parents have a unique relationship of care with their children. They know their children and they know how to make them feel safe and how to treat them with dignity. They should be supported, not undermined. Or patronised.
If the Government wants to “send a clear message” it should use social media, not criminalise a reasonable parenting practice used by vast numbers of loving parents.
3. Polling shows public don’t want to ban smacking
The press release went on to say: “Research published last year suggests attitudes to the physical punishment of children are changing. It found 81% of parents of young children in Wales disagreed that “it is sometimes necessary to smack a naughty child”.
This 81% figure was from a survey, Parental Attitudes Towards Managing Young Children’s Behaviour 2017, commissioned by the Welsh Government. They neglect to mention that this is a self-selecting group of people who agreed to stay in touch with the Government. They also fail to mention the very small number of respondents – just 269.
They don’t quote their own 2017 consultation, with 1,728 responses, in which 48% expressed concerns about a ban.
They also neglect (ever) to mention their 2018 #TalkParenting online survey, with 1,298 respondents. That may be because 64% disagreed with banning smacking.
That figure tallies with our 2017 ComRes poll of 1,019 people which found 76% did not think parental smacking should be a criminal offence. A 2014 YouGov poll of 1,009 people found that 69% said parents should not be banned from smacking. These are representative samples and are subject to the rules of the British Polling Council. Unlike the Welsh Government.
This leaflet might help clear things up: Public opinion on smacking in Wales
4. Only a handful of countries have criminalised smacking
Julie Morgan went on to say: “More than 50 nations across the world have already responded to the international call to end the physical punishment of children.”
This misleadingly suggests that these other nations have done what Wales is proposing. They have not. Most nations alleged to have ‘banned’ smacking created no enforcement mechanism. Wales will be one of the first in the world to criminalise it.
The Government’s own consultation paper admits as much:
“Of the 53 countries… only 4 are common law jurisdictions. The other 49 are civil law jurisdictions with the basis of their legal system being so different to the UK’s it is not possible to draw any useful comparisons in the drafting of legislation.
“Another important distinction is that in England and Wales common law assault and battery are criminal offences. The defence of reasonable punishment is therefore a defence to a criminal offence and its removal would primarily impact on the criminal law.
“Of the 4 countries which operate in a common law system only 3 have ended corporal punishment using the criminal law… Whilst there are some potential lessons, the differences in how our laws have developed means that exact comparisons can not be drawn.”
One country that has criminalised smacking is New Zealand. Public law specialists Chen Palmer carried out a detailed assessment of the legislation there and concluded that banning smacking in New Zealand has criminalised ordinary parents.