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 wading into a debate where they are likely to be accused of dictating to parents how to raise their kids. As far as the public is concerned, smacking 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.
Law on smacking
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.”
But 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 be removed only by introducing legislation to make this kind of punishment a criminal offence.
Ireland is not alone in its ambiguity on these issues. 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.
The Government claims that a prohibition on corporal punishment is under constant review, although it would doubtless prefer to avoid the headache of another “family” controversy in the run-up to the referendum on same-sex marriage.
Hitting children goes against the United Nations 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”.
Defence
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, it will become harder and harder for the Government to insist that our current laws are sufficient to protect the wellbeing of children.