HM Insights

Scotland's smacking ban' comes into force 7th November 2020

On 7th November 2020, The Children (Equal Protection from Assault) (Scotland) Act comes into force. It means that Scotland will become the first Country within the United Kingdom to offer children the same protection from assault as adults. In doing so, Scotland joins a number of other countries throughout the world who have ensured similar provisions for children.

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The legislation is very short, running to only 5 sections. Section 1 is the section which has the effect of the law change in Scotland. In particular, Section 1(1) states, "The rule of law, that the physical punishment of a child in the exercise of a parental right or a right derived from having charge or care of the child is justifiable and is therefore not an assault, ceases to have effect."

The effect of the legislation is to remove any and all doubt that the chastisement of children, even where that chastisement is considered 'reasonable' by a parent or carer, is now unlawful.

Following a public wide consultation period, it was clear that there was overwhelming support for the legislation. The change in the law has received full support from a number of children's rights organisations such as Children's 1st,Barnardos and Rape Crisis Scotland.

The legislation will hopefully be a positive step forward in ensuring that children enjoy the same legal protections against assault as adults, and in consequence have a positive effect on the emotional and physical development of children. The ban aims to protect children, who are vulnerable and at potentially at risk of abuse or harm.

Will the law criminalise parents?

The effect of Section 1 of the Children (Equal Protection from Assault) (Scotland) Act does not create a new criminal law or impose criminal sanctions upon parents or carers who smack their children. It is anticipated that the existing criminal laws dealing with assault may be utilised to ensure compliance with the new legislation.

There have been concerns raised the campaign group 'Be Reasonable' in light of the pending law change. They state, "With just over a month to go until the ban is implemented, nothing has been done to tell families what it means…Unlike other cultural changes such as the smoking ban, there has been no marketing to bring the public up to speed. Many parents will simply be caught unawares.

On 29th May 2020, the Scottish Government released a press circular to relevant and interested bodies in relation to the implementation of the new legislation. A copy of that circular can be found here.

Following our Blog Post from October 2019, the Scottish Government has identified resources in partnership with 'Parent Club' which may assist parents or carers who are struggling with children's behaviour. The guidance is helpfully set out according to the age bracket that a child falls into. It can be accessed here.

What next for children's rights in Scotland?

On 1st September 2020, the UNCRC (Incorporation) (Scotland) Bill was introduced in the Scottish Parliament which aims to incorporate the United Nations Convention on the Rights of the Child ('UNCRC') into Scots Law. More information on the progress and aims of the Bill can be found here.

A further blog post will be released when the Bill makes further progress through Parliament.

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