To smack or not to smack?
Law on slapping children clear – but not so simple
There are many aspects to the emotionally-charged issue of smacking – legal, ethical, moral – that divide parents, campaigners and legislators.
Children’s charities argue that a ban on smacking – or “violence against children” – is a way of strengthening the protection of vulnerable young children.
Policymakers fear a ban risks depicting the Government as a nanny State intent on dictating to parents how to raise their kids.
As far as the public is concerned, it retains at least partial social acceptance. A Government commissioned survey found that 42 per cent of respondents felt it should be made illegal; 24 per cent felt it should depend on the age of the child; while 34 per cent said it should remain legal.
At first glance, the law on smacking, or using physical discipline against children, seems relatively clear.
The Children’s Act (2001) provides a clear legal deterrent to the use of excessive force against young people in the home or elsewhere.
“It shall be an offence for any person who has the custody, charge or care of a child wilfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child’s health or seriously to affect his or her wellbeing,” the Act states.
But it’s not necessarily so simple. When it comes to corporal punishment in the home, a defence of “reasonable chastisement” still exists in common law.
This, according to legal experts, can only be removed by introducing specific legislation to make this kind of punishment a criminal offence.
Ireland is not alone in its ambiguity on these issues. In the UK, for example, corporal punishment is outlawed. However, a parent may smack a child as a disciplinary measure, as long as the actions do not cause bodily harm.
But there is a growing momentum to ban the practice altogether. An estimated 33 countries have made the punishment of children illegal – 22 of them in Europe – and there is evidence that the legal change, and public debate around the issue, has changed attitudes to smacking and other forms of force.
Sweden became the first country to explicitly ban all forms of corporal punishment of children in the late 1970s.
The proportion of Swedes who considered physical punishment (even in its mildest form) necessary for child discipline halved between 1960s and 1980, and halved again by the 1990s.
The damage caused by smacking is also a hotly-debated issue, although the research findings over the past 20 years or so are consistently clear. Smacking children – especially the repeated use of force – can cause long-term developmental damage and may even lower children’s IQ.
“What people have realised is that physical punishment doesn’t only predict aggression consistently, it also predicts internalising kinds of difficulties, like depression and substance use,” said Joan Durant, a Canadian professor involved in reviewing two decades of research, told reporters recently.
International rights bodies, too, have stepped up calls for banning the physical punishment of children.
Hitting children is against the Convention on the Rights of the Child, which Ireland ratified. The UN, responding to the Government’s report in 2006, said it was “deeply concerned that corporal punishment within the family is still not prohibited by law”.
The Government’s response has been to claim such a prohibition is under constant review, although it’s clear it would prefer to avoid the headache of drawing up fresh legislation.
Frances Fitzgerald, the Minister for Children, told the Oireachtas earlier this year that there was a balance to be found between “supporting parents in effective parenting” and the use of “criminal law to impose criminal sanctions on parents who do not adhere to best practice in parenting”.
But allowing for a defence of reasonable chastisement – however limited – is likely to pose problems for the Government over time. It, after all, held a referendum on children’s rights on the basis that it was a once in a generation opportunity to show how much Ireland valued children by strengthening the protections for them in the heart of Irish law.
Against that backdrop, a zero tolerance to the physical chastisement of children is inevitable. And it will become harder and harder for the Government to insist our current laws are sufficient to protect the wellbeing of children.