Right: In 2020, Scotland's Parliament legislated to provide protection from assault to children. The law now sets out in clear terms that physical punishment should no longer be part of childhood in Scotland
 Found a word you're not familiar with? Double-click that word to bring up a dictionary reference to it. The dictionary page includes an audio sound file with which to actually hear the word said. |
Arguments against laws to prevent parents physically punishing their children
1. Children already have legal protection against abuse and excessive force
Those who oppose alterations being made to Australian law to prevent parents being able to physically punish their children, argue that there are already laws and child protection services in place in every Australian state specifically designed to ensure that children are not subjected to abuse.
Each state and territory in Australia has its own child protection legislation, in addition to Commonwealth legislation. This legislation is designed to protect children at risk of significant harm. Key principles based on human rights conventions and frameworks underpin Australian legislation to ensure it is consistent and upholds children's rights and interests.
The principles of the United Nations Convention on the Rights of the Child (United Nations, 1989) underpin all of Australia's child protection legislation. The Commonwealth Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) provides guidance on how to uphold the principles in the Convention on the Rights of the Child.
The Australian Capital Territory, Queensland and Victoria have human rights Acts or charters that also guide their child protection legislation and services. Other jurisdictions do not have human rights Acts but seek to include the protection of human rights within their legislation. The Family Law Act 1975 (Cth) is the key piece of Commonwealth legislation that sets out how child protection concerns raised in federal family law proceedings should be managed, including reporting obligations for family law court staff and mechanisms for courts to obtain information from child protection agencies. Child protection legislation in each state and territory differs according to local needs (Australian Institute of Health and Welfare [AIHW], 2021; Wise, 2017). However, legislation across the Commonwealth, states and territories has similar guiding principles. These principles include acting in the best interest of the child; early intervention and support for families; culturally appropriate care and Aboriginal and Torres Strait Islander Child Placement Principles; and participation of children and young people in decision-making processes.
Part of the legal protection provided to children in Australia is mandatory reporting of suspected abuse. This requires key groups of people in contact with children to formally report suspected child abuse (generally, physical abuse, sexual abuse, emotional abuse, neglect, and exposure to family violence).
Paula Gerber, a professor in the Law Faculty at Monash University with expertise in international human rights law, focusing on children's rights has explained, "Children have a right to be safe, and the law imposes what's called 'mandatory reporting obligations' on a number of different professionals. If they have reason to believe that a child is being subjected to violence, abuse or even neglect, then they must report that to child protection services, which falls within the government's Department of Human Services.'
The occupations most named as mandated reporters are those who deal frequently with children in the course of their work: teachers, early childhood education and care practitioners, doctors, nurses and police. In the Northern Territory, anyone who meets a child is required to report suspected abuse. In addition to this, any person is lawfully entitled to make a report if they are concerned for a child's welfare, even if they are not required to do so as a mandatory reporter. Anyone making a voluntary (non-mandated) report is protected regarding confidentiality and immunity from legal liability if the report proves to be unfounded.
2. Evidence of the harm caused by corporal punishment is inconclusive
Those who defend the right of parents to employ 'reasonable chastisement', including physical punishment, when managing their children's behaviour, argue that much of the evidence supposedly demonstrating that physical punishment harms children is questionable.
One of the key objections to some of the research that has drawn negative conclusions about the effects of physical punishment is that its definition of physical punishment has been too broad. Robert Larzelere, professor of Parenting at the Department of Human Development and Family Science, Oklahoma State University and Dr Dem Trumbull of the American College of Paediatricians have stated regarding this faulted research, 'The first step in assessing the effectiveness of an intervention... is to ensure the intervention is...well-defined.'
Regarding the physical punishment of children, Professor Larzelere has claimed that some studies have grouped research looking at mild forms of physical punishment together with research examining the effects of severe and abusive punishment and so have drawn misleading conclusions. He has drawn attention to 'studies that included severe types of corporal punishment such as "beating with a stick," "still hurt the next day," "burning," and "using a knife or gun."
Summing up the problem, he has stated, 'The research against disciplinary spanking often lumps appropriate spanking together with overly severe physical punishment and punishment that is inappropriate in other ways.' He argues that research including such extreme forms of punishment does not allow researchers to form accurate conclusions about the effect of the controlled use of mild punishments. He and Trumbell refer to this as 'the lumping fallacy'.
Another of the key criticisms that has been made of studies which claim to show that physical punishment leads to psychological, social, and cognitive harm to children is that causation is not established. Critics maintain, the fact that many people who were physically punished when young subsequently display psychological and developmental issues does not prove that physical punishment caused these later problems. Dr. Stuart Farrimond, a science and medical writer, presenter, and educator, has noted, 'The 'anti-smacking' lobby fail to correctly interpret data: confusing correlation with causality. Higher rates of depression, aggression and mental illness are found in people who were smacked, but this could be for entirely different (e.g., socio-economic) reasons.'
Some longitudinal studies (that is studies that followed subjects from early childhood until later in life) have found that early apparent links between childhood aggression and physical punishment tended to disappear as the subject matured and continuing aggression appeared to be attributable to other factors. Dr Leonard Eron, a clinical psychologist at the University of Michigan's Institute for Social Research, has stated, 'Upon follow-up ten years after the original data collection, we found that punishment of the aggressive acts at the earlier age was no longer related to current aggression, and instead, other variables...were more important in predicting later aggression.'
It has also been suggested that some research findings have confused cause and effect. Research critics argue that subjects who were physically punished as children may already have had psychological and social issues anger management problems and aggression. These critics suggest that pre-existent issues like poor anger management may have led to these subjects being physically punished as children. It may also have been the reason why these children were more often physically punished when young. Mark Penninga of the Association for Reformed Political Action (ARPA) Canada has stated, 'The fact that... frequent spanking correlates with worse child outcomes does not... mean that no spanking will lead to the best outcomes. It could instead mean that the best parents use spanking... when needed.' Making a similar point Penninga also stated, 'Aggressive children were spanked more often because they were aggressive.' These critics maintain that inherent predispositions in children, such as toward aggression, may well prompt parental punishment and may also persist into adulthood. They argue that it cannot be proven that the child's and the later adult's aggression was caused or worsened by the punishment.
3. Smacking can be a useful parental management strategy if applied appropriately
Those who argue that it should remain legal for parents to physically punish their children claim that this can be an effective form of discipline.
Supporters of the physical punishment of children all begin by stating that they only support mild physical punishment, administered by parents who are not angry or otherwise out of control and who judge it the most appropriate form of discipline in a given circumstance.
Supporters of moderate physical punishment argue that it can sometimes be the most appropriate action to take to manage a child's behaviour. One of the suggested circumstances is where a child has taken an action that could be dangerous and is too young to understand the parents' explanation of the hazard involved. This position has been explained on the New South Wales legal assistance site gotocourt,com,au. The legal advisers state, 'Physical punishment [can be] a necessary part of educating children about right and wrong behaviour. A smack catches the attention of the child being disciplined in a way that less direct forms of punishment may not. In a situation of physical danger, such as a child trying to run onto a road, a smack can instill fear in the child of the consequences of doing something dangerous and thus keep the child safe.'
In an opinion piece published in The Spectator on October 21, 2017, Brendan O'Neill
explained that arguments based on the type of action that would be appropriate when dealing with adults may not be suitable when dealing with children as, by definition, children lack adult maturity. O'Neill stated, 'Some say that just as you wouldn't assault an adult, so you shouldn't "assault" a child. But there are many things we do to children that we wouldn't dream of doing to adults. We make sure their bottoms are clean after they've been to the loo. We forbid them from eating certain things. We tell them to go to bed. We tell them off for getting food on their jumpers. You wouldn't do any of that to someone over the age of 18. But children are different. They are immature, rash, untrustworthy. They need boundaries. Some parents enforce those boundaries with a slap. Because they love their children.'
Some of those who argue there is a place for smacking or spanking among a range of strategies that parents use, argue that it should never be the predominant disciple technique employed, but that it has a place as a 'back-up' strategy. By this, they mean that brief, moderate, physical punishment can be used to enforce compliance with other punishment strategies. The example most often given is that if children refuse to go to a time-out location as a punishment for misbehaviour, one or two smacks can be used to gain the child's obedience.
The work of Robert Larzelere, professor of Parenting at the Department of Human Development and Family Science, Oklahoma State University has been used to demonstrate the effectiveness of this technique. A paper published by the American Psychological Association in 2012 stated, 'In a meta-analysis of 26 studies, Larzelere and a colleague found that an approach they described as "conditional spanking" led to greater reductions in child defiance or anti-social behavior than 10 of 13 alternative discipline techniques, including reasoning, removal of privileges and time out.... Larzelere defines conditional spanking as a disciplinary technique for 2- to 6-year-old children in which parents use two open-handed swats on the buttocks only after the child has defied milder discipline such as time out.' Larzelere suggests that back-up spanking should ideally serve as a transition to the exclusive use of non-physical punishment such as time-out.
In an article published in The Times on September 16, 2014, clinical psychologist Dr Jared Pingleton explained the principles generally recommended by those who argue in favour of physical punishment for some children. He wrote, 'Properly understood and administered, spanking is most effective as a deterrent to undesirable behavior for younger preschoolers (but never for infants). That's because reasoning and taking away privileges often simply does not work with kids in that age range. As children age, spanking should become even less frequent as other types of consequences are utilized. Spanking should be phased out completely before adolescence...
We advise parents that corporal discipline...should never be administered harshly, impulsively, or with the potential to cause physical harm.'
4. Laws against corporal punishment in the home are intrusive and undermine the role of parents
Those who oppose the laws that prohibit parents using corporal punishment to manage their children argue that these laws undermine the autonomy of parents, preventing them from acting in what they believe is their childrens' best interests.
In November 2020, Scotland made it illegal for parents to physically punish their children. Those who oppose this new law see it as overturning parents' right to determine how their children should be reared. In an opinion piece published in The Spectator on October 21, 2017, Brendan O'Neill condemned the yet-to-be-implemented legislation. O'Neill claims that the new law is 'the use of legal pressure to force every parent in the land to raise their kids in a way that the cultural elite approves of. It is an attack on parental sovereignty and familial privacy... And it will further throw open the family home and the family itself to the prying eyes of the police and bureaucrats.'
Less than two years later, in March 2022, a law came into force in Wales that also prohibits the physical punishment of children. This law, too, has been criticised as excessive and undermining parents. In a submission made to the Welsh Parliament one complainant warns that the law 'would seriously undermine the principle that parents are responsible for bringing up their children, not the state, council or another body...It is vitally important that parents be held responsible, not only for the good of the children, but because they should not be made to feel less than competent to decide.'
Prior to passing its new law, the Welsh government had a wide range of interviews conducted with focus groups of parents. Most parents appeared to feel that they were in the best position to raise their own children and that the State should not infer in what they choose to do. The report presented to the Parliament states, 'The majority of the parents felt that knowledge of the individual child...was far more important than theoretical knowledge or outsider expertise when it came to managing their children's behaviour.' The report further states, 'The consensus was that ... as parents and knowing their children well, they were best placed to be the experts making decisions about what was appropriate for their own children.'
Under Australian law parents have a set of rights regarding the way they rear their children. These rights are conferred by the Education Act 2004, the Family Law Act 1975 and the Children and Young People Act 2008. The New South Wales Family and Community Services Department has explained these parental rights, stating, 'The law allows parents to bring up their children according to their own values and beliefs. Decisions such as religion, education, discipline, medical treatment and where the child lives will not be interfered with unless there are good reasons or the child's well-being is at risk - for example, if there is abuse, if the child is not receiving education or necessary medical treatments.'
Opponents of proposed anti-smacking laws argue that they would challenge parents' existing rights to raise their children according to their own standards and ideals, and their right to discipline their children as they choose so long as this is in a manner the law deems reasonable.
It is currently lawful for parents in all states and territories to use 'reasonable' physical punishment to discipline their children. A parent's right to use physical punishment is stated in some state and territory legislation (e.g., New South Wales), while in others it is provided for by the common law or 'judge-made law'.
Opponents of anti-smacking laws argue that decisions about child management should be made by parents, so long as they do not break laws against assault and abuse. In a comment published in the Scottish Daily Mail, on July 18, 2012, then Tory Education spokesperson, Elizabeth Smith, stated, 'In law there is a very clear difference between the definitions of violent assault and reasonable chastisement. The former is a criminal offence punishable through the courts, the latter is a matter for parents as they decide how to discipline their children. It is not a matter for the state.'
5. Laws against corporal punishment could criminalise parents and see children removed from their homes
Opponents of corporal punishment being made illegal in the family home argue that reassurances that this will not criminalise parents are false. They claim that such laws could see parents face fines and potentially prison terms and could also cause family members to be separated from each other.
The way in which laws opposing corporal punishment operate in Wales have been seen as a warning of how parents and others might be treated in other jurisdictions. In March 2022, it became illegal for anyone in Wales to physically punish a child. Government public information about the new law states, 'From today it is illegal to: smack, hit, slap, shake your child (or physically punish them in other ways).' The government information goes on to warn 'You could face: arrest, being charged with assault, a criminal record'. People who see a child being physically punished have been advised by Welsh government to either call the police if a child is in immediate danger or contact their local social services department.
Critics of the new Welsh law have said it threatens parents and will undermine families. Gareth Davies, the Welsh Conservatives' spokesperson for social services, has stated, 'This guidance flies in the face of the assurances that ministers gave to the Welsh people and there are justified concerns that the police will come under further pressure if the new regime leads to false claims and busybodies taking advantage...
I am very worried about campaigns that encourage a Stasi culture in Wales where people - and children - are encouraged to shop parents, who discipline their children in what they deem a proportionate manner, to the police.'
The Welsh pro-smacking lobby, Be Reasonable, has expressed similar concerns. The group has outlined many problems that could result from the new law. Its information site states, '85% of Welsh adults have been smacked. Outlawing reasonable chastisement will inevitably catch ordinary loving parents and turn them into criminals. The slightest touch could become grounds for an assault charge.But even if a parent is released without charge, the nature of being arrested and investigated could have a hugely damaging impact on the parent and family. Children may be removed from their parents while an investigation is underway.
Children could be removed from their parents merely on the suspicion of having been smacked.
The smacking ban could be weaponised by divorcing parents or used in family rifts, leaving children in a vulnerable position.'
A spokesperson for Be Reasonable, James Gillies, told the committee responsible for the ban that 'the ramifications of this Bill are massive for the Welsh public. The government is playing with fire if it thinks it can make this change in the law and not affect the lives of parents, and by extension, children. How many parents are going to have police cautions, which would appear on checks which could potentially affect their employment?
In some cases, this could prevent them from getting a job, even if they are a highly skilled doctor, nurse, or teacher.'
Similar concerns have been expressed regarding the operation of anti-smacking laws in Scotland. In an opinion piece published in The Spectator on October 21, 2017, Brendan O'Neill condemned the yet-to-be-implemented legislation. O'Neill warns, 'The consequences of the bill will be dire. Loving parents will suffer. The stressed-out mum trying to manage four kids as she negotiates the aisles of Asda and then finds herself lashing out at one of them: grass her to the cops. The traditionalist father who adores his children more than life itself and thinks a smack on the legs is a preferable form of punishment to plonking them on a chair for 15 minutes: drag him to court. The mother who just about stops her boy from running into the road and is so determined to let him know he has just done an incredibly dangerous thing that she clips him round the ear... what if we witness that? Dial 999?'