The potential for the implementation of a “smacking ban” in Wales is edging ever closer. The proposed change would remove the defence of “reasonable punishment” in Wales.
There is no doubt that it is a controversial topic with concerns raised about how it could potentially criminalise parents.
After appearing live on the ITV news to discuss this topic, our Katie O’Connell gives specific consideration to how the ban could impact on Family Law matters in her role as a specialist Family Law Lawyer:-
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?
Children Act proceedings by their very nature can often be highly emotive. The smacking ban could encourage a vengeful or malicious parent to make allegations of an assault upon their child and the consequences could be serious. Whilst that is not to say that this does not happen currently, pre-implementation of the ban, the Police have been reported in the press as saying that the ban may result in more reports being made to them as more people become aware of the law.
If an allegation is made by one parent as to their child being smacked, if they are already in or about to embark on Private Law Children proceedings this could trigger what is known as a Re L- Fact Finding hearing. Whilst the standard of proof would be lower than that in a Criminal Court, a Fact Finding hearing can elongate proceedings and matters can become very protracted as a result.
There could also be cross border issues, a parent who lives in Wales would be treated differently to a parent who lives in England, as there, the defence of “reasonable punishment” will remain available, whereas it would not in Wales, should the smacking ban be implemented. We see many cases where one parent lives in England and one parent in Wales. This could result in disparities in how a child is disciplined in their different homes.
In terms of punishment, in Family Law, it is sometimes the case that a party to Children Act proceedings could be ordered to attend on a parenting course. Perhaps this would be of more assistance to a parent who has previously disciplined their child by “smacking” them, so that they could be educated about the change in the law as opposed to potentially finding themselves with a criminal record.
Of course, it has always been illegal to assault a child and it is of the highest importance that a child should be protected from violence but many are concerned that the consequences of the ban could be far reaching. Only time will tell how the ban will pan out and the number of actual prosecutions that will be brought against parents. Whether or not a parent should be charged with a criminal offence will of course be subject to the usual CPS tests as to whether or not it is in the public interest to prosecute. There is also the issue of where we draw the line. Verbal abuse can, of course, be as damaging to a child as physical abuse. It is imperative that any action taken in any such cases is proportionate as the consequences could be wide reaching not in only in Criminal Law, but in Family Law also.