The Scottish Government recently announced a raft of measures to “further strengthen the family law system”.
Community Safety Minister Ash Denham will take forward a ‘Family Justice Modernisation Strategy’, which sets out additional work to improve the operation of family justice through secondary legislation, guidance and longer-term work.
Announcing the proposals, Ms Denham said “family breakdown can be very upsetting for children”, adding that it’s the Government’s responsibility to “ensure the family justice system is supportive and does not contribute to their distress”.
Improving the experience of children caught in the midst of family court proceedings is hugely important, especially in a culture where family breakdown is at endemic levels.
Unfortunately for Ash Denham, the Government looks set to undermine these reforms before they begin.
The prospect of a ‘smacking ban’ is highly contentious in Scotland and also in Wales, where a parallel Bill is being taken forward by the Welsh Government. Polling on the issue shows that over 70 per cent of the public in both nations do not want to see a law which criminalises parents who smack, and there are fears that a smacking ban could distract the police and social workers from other vital tasks.
Families in ‘real turmoil‘
MSPs heard these concerns in a debate earlier this year. However, many will be unaware of the expected impact on family justice. In September, Katie O’Connell, a specialist family lawyer at Wendy Hopkins, the largest family law firm in Wales, outlined her concerns: “If a parent is investigated for an offence of this nature, or worse convicted of an offence of assault against their child, a family could be left in real turmoil. Social services would also very likely be involved.
“Pending prosecution of the accused or if a parent is convicted of an offence against their child, it could result in families being divided. Of course, the other parent would need to be seen as protecting their child from potential harm. Where would this leave their relationship with the accused?”
O’Connell identifies that removing reasonable chastisement will see parents investigated for smacking in a way that they aren’t at present.
Currently, the police and social workers make the call as to whether a parent’s actions were reasonable or whether they crossed the line into abuse, and decide how to respond on a case-by-case basis.
This approach will indeed cause “turmoil” in loving homes. As O’Connell rightly points out, it could lead to division between children and their parents, and division between parents themselves.
If a child is interviewed by the police about smacking, what will this do to the parent-child relationship? And if one parent is alleged to have smacked, and the other is not, what will this do to the parents’ relationship?
O’Connell is not alone in her concerns. In May this year, the UK Ministry of Justice (MoJ) also outlined problems with a smacking ban in a letter to the Welsh Assembly. The letter warned: “Her Majesty’s Courts and Tribunal Service have serious concerns that feuding parents may, following the removal of the defence, use the change to further their cause against the other parent in a separation or divorce.”
“This would inevitably cause delays in proceedings when the family court is already under pressure…one parent may fabricate an episode of smacking as a reason for non-contact with the other parent and for the involvement of the police. This is a complex problem that is recognised as an issue in other countries as well as in the UK”.
The MoJ warns that a smacking ban could be weaponised by divorcing parents, putting family courts under further pressure and slowing down the resolution of cases. This would be problematic for the courts but, more significantly, it would prolong and exacerbate the pain of family court proceedings for children.
The concerns of family lawyers like Katie O’Connell and experts at the Ministry of Justice may have been raised in the context of Wales but they are relevant to Scotland as well. Removing reasonable chastisement from the law in Scotland risks precisely the same outcome – a profoundly negative impact on family justice for years to come.
The Scottish Government says it is committed to improving family justice in Scotland. But it is hard to see how it can implement reforms when a smacking ban is suspended over the system like the sword of Damocles. If the Government truly is serious about improving family justice it must oppose the smacking ban.
Jamie Gillies is a spokesman for the Be Reasonable campaign which opposes moves to criminalise parental smacking.