This item was published during the term of a previous administration that ended in April 2007
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No smacking rule for children under three
06/09/2001
Legal protection for children to prevent the use of
'unreasonable and excessive' punishment was proposed by the
Executive today.
Deputy First Minister and Justice Minister Jim Wallace
said:
"While we believe that parents should have the rights to
set the grounds for the discipline of their children, we
felt there was a strong need for greater clarification of
the law as to what defined 'reasonable' punishment."
The proposals include:
- a total ban on blows to the head, shaking and the
use of implements
- a ban on physical punishment of children up to and
including the age of two
- a ban on the use of corporal punishment in
childcare centres, by childminders and in non-publicly
funded pre-school centres
- Setting out in statute the factors courts must take
into account when determining whether punishment was
'reasonable'
- Parents will set the ground rules for discipline in
the home, which will include babysitters and
childminders. The change in law will not affect
this.
Parents will keep the right to reasonably chastise their
children but greater restrictions on what is allowed will
be enacted. Although the law in Scotland already protects
children from unreasonable chastisement, the Scottish
Executive believes further clarification of the law must be
added to ensure their safety.
The proposals will require legislation and could be
included in the Criminal Justice Bill. A White Paper
setting out the measures to be included in the Bill will be
published in October for introduction to Parliament early
next year. It would be expected to receive Royal Assent by
the end of 2002.
Jim Wallace said:
"Courts will have a number of factors they must now take
into account when deciding whether punishment was
'reasonable'. These will include the nature and context of
the punishment; its duration and frequency; its physical
and mental effects and the sex, age and state of health of
the child.
"There will also be an absolute ban on blows to the
head, shaking and the use of implements. We also propose to
ban physical punishment of children up to and including the
age of two. Up to this age, it is very doubtful that a
child would understand why he or she was being punished and
if the child was in any imminent danger it should be
possible for an adult to restrain or remove the child from
danger rather than punish them.
"In accordance with the overwhelming response by those
involved in these services, we propose to ban corporal
punishment in childcare centres, by childminders and in
private pre-school centres. This is consistent with
existing policy for schools and publicly funded pre-school
centres and will provide a welcome clarity for their
employees.
"These plans reflect views from the recent consultation
where more than three quarters of those who responded were
clearly in favour of further legal restrictions.
"We want to amend the law to protect children from
punishment that is harsh, degrading and completely
inappropriate in a decent society and I know this is
something the majority of people in Scotland will
support."
Nicol Stephen, Deputy Minister for Education, said:
"These proposals recognise both the rights of parents to
exercise their parental responsibility and raise their
children safely, as well as protecting the rights of
children.
"Good parenting is an important and demanding job. It is
essential we recognise the rights of parents to exercise
their parental responsibility to bring up their children
safely, as they think best, without undue interference from
the State, at the same time as protecting the rights of
children."
The announcement was made today in response to a Written
Parliamentary Question by Pauline McNeill MSP.
BACKGROUND
1. The Scottish Executive's consultation paper
Physical Punishment of Children in Scotland was published on 8 February 2000. The full analysis of
the consultation responses is available on the Scottish
Executive website.
2. In the 1998 case of
A v UK, the UK Government accepted in the European
Court of Human Rights that English law did not adequately
protect children. Scots Law is similar but important
differences mean that such a case is less likely to occur
in Scotland. Procurators fiscal would normally ask the
court to rule that such a severe case could not constitute
'reasonable chastisement'.
3. A pledge to consult on this area of the law was made
following the opinion of the European Commission on Human
Rights (PN 97/336) and again following the verdict of the
European Court of Human Rights in September 1998 in the
case of A v the United Kingdom.
3. The Scottish Law Commission Report on Family Law
recommended in 1992 that corporal punishment using
implements such as canes or belts should be banned. This
was not implemented in the Children (Scotland) Act
1995.