The Scottish Government

« Previous | Contents | Next »

Listen

04 CIVIL RIGHTS AND FREEDOMS

Articles: 7, 8, 13-17, 37(a)

A) NAME AND NATIONALITY

206 All children are born with the right to know and be cared for by their parents. All children who are born in Scotland have their birth registered, normally within 21 days.

TABLE 17 Birth registrations in Scotland

Source: General Register Office for Scotland

207 Following changes made in the Family Law (Scotland) Act 2006, a child's mother and father are both given parental responsibilities and rights even if they are un-married if they register the child's birth together. This affects around 40% of children born each year in Scotland.

208 Children may be removed from their parents in child protection cases to a place of safety under a Child Protection Order granted by the Sheriff. In some cases a child's parents may agree to the local authority providing alternative accommodation until concerns about the child can be clarified. Parents may also give up the right to parent the child and consent to making the child available for adoption. When adoption is being considered, the interests of children, birth parents and substitute parents should, where possible, be held in balance, albeit the welfare of the children throughout life is the paramount consideration. Where appropriate, children's views should be taken into account.

209 Only adopted persons who are aged 16 or over have automatic rights to information about their own adoption. They can obtain a copy of their original birth certificate which will provide details of their birth parents (section 45(5) of the Adoption (Scotland) Act 1978). Adopted persons under 16 have no automatic rights to information about their adoption, although adoption agencies have discretion to provide them with information including access to appropriate information from their adoption agency records.

B) CORPORAL PUNISHMENT, INHUMAN OR DEGRADING TREATMENT

Parents and corporal punishment

210 The 2002 Concluding Observations recommended changes to legislation to remove the "reasonable chastisement" defence and prohibit all corporal punishment in the family.

211 The Executive believes in giving every child the best possible start in life. This extends to all areas of policy - not least that relating to child protection and support for families.

212 Those with parental responsibilities and rights in respect of a child under the Children (Scotland) Act 1995 have a responsibility to provide direction and guidance to the child. Both they and any other person who has care and control of a child must safeguard and promote the child's health, development and welfare. Scottish Ministers consider that it is vital that children grow up with a strong sense of right and wrong, and a clear disciplinary framework. Where necessary, parents are entitled to punish children for doing wrong, and this can include the use of physical punishment within clearly defined limits.

213 However, in 2003 changes to the law relating to the physical punishment of children were brought about following detailed public consultation and thorough parliamentary scrutiny. The changes provide improved protection for children against physical assault and by giving greater clarity to the law, aim to help parents, foster parents and paid carers avoid the use of unnecessary and excessive physical punishment. For those cases which come to court, it provides clearer guidance on the factors which courts must consider, and bring these into line with factors laid down by the European Court of Human Rights and re-affirmed in the case of A v UK. Although this case was directly concerned with the law in England, the law of Scotland was substantially the same.

214 When proposing changes to the law, Scottish Ministers considered a complete ban on the physical punishment of children which would, in theory, provide complete protection for children. However, following consultation and research, they concluded that there was only minority public support for such a ban in Scotland.

215 Following the case of A-v- UK in the European Court of Human Rights, the Scottish Executive issued a consultation paper The Physical Punishment of Children in Scotland (February 2000). 220 responses were received:

• 77% agreed there should be some clarification of the law and/or further restrictions introduced;
• 47% supported the Scottish Executive's proposals for clarification;
• 34% wanted a complete ban on smacking;
• 17% opposed any change to the law; and
• 6% gave other answers.

216 Children's views were sought by asking bodies such as local authorities to seek their views, commissioning Children in Scotland to canvass children's views and research was conducted in small groups across Scotland. Children were against smacking, which was seen as frequently unfair and counterproductive.

217 In early 2002 the Scottish Executive commissioned research from NFO System Three Social Research and Stirling University to provide information about attitudes and behaviours amongst parents in Scotland. Key findings included that although there was some evidence of change over time in the unacceptability of many forms of physical chastisement, smacking remained deeply embedded in parenting culture within Scotland. However there was strong support for the aspects of the legislation related to making shaking, hitting around the face or head or use of an implement illegal. These findings were actively used by the Scottish Parliament's Justice 2 Committee, and were drawn upon in debates during the passage of the Criminal Justice Bill through Parliament.

218 Through section 51 of the Criminal Justice (Scotland) Act 2003, the Scottish Parliament set the limits clearly and for the benefit of children, without encroaching on the private life of the family. It is now illegal to punish children by:

• shaking;
• giving blows to the head; and
• using implements, such as canes or belts.

219 In addition, when a court considers whether the physical punishment which a child had received constituted a justifiable assault, it must also consider things such as:

• the child's age;
• what was done to the child, for what reason and what the circumstances were;
• the duration of the punishment and the frequency;
• how it affected the child (physically and mentally); and
• other issues personal to the child, such as gender and state of health.

220 The fact that certain forms of punishment are banned as never being justifiable assault does not mean that the Executive considers anything else as justifiable or condones violence towards children. Ministers have specifically said certain forms of punishment are never justifiable and have imposed a test as to whether other forms are justifiable in the circumstances.

221 It is worth noting that on introducing the Criminal Justice Bill to Parliament, Scottish Ministers did propose to prohibit the use of physical punishment on a child under the age of three. Parliament rejected this proposal. Parliament was also invited to re-consider the question of physical punishment of children during consideration of the Family Law (Scotland) Act 2006. It concluded that it would be inappropriate to introduce a further change to the law little more than 2 years after the most recent legislation in this area.

Promoting positive discipline

222 Paragraph 38(b) of the 2002 Concluding Observations recommended that the UK promote positive and non-violent forms of discipline and carry out public education programmes on the negative consequences of corporal punishment. The Executive has produced a booklet children, physical punishment and the law which both explains the law to parents and encourages positive discipline. This is designed both as an information tool and as a deterrent to the use of physical punishment. Voluntary organisations working with parents and children and focus groups of parents were consulted on the design and content of this booklet which was sent to the parents of every child in Scotland through nurseries and schools. There is still regular demand for this booklet (since 2004 over 700,000 copies have been distributed to GP surgeries, social work departments and other agencies).

223 It was hoped that the changes brought in by s51 of the Criminal Justice Act would change parent's behaviour and not result in increases in prosecution. It is encouraging that as yet there is no reported case law attaching to section 51. The Executive is looking at commissioning a further attitudinal survey in 2007 to examine whether public attitudes to the physical punishment of children have changed in the intervening years.

Services for children and corporal punishment

224 Physical punishment by childminders and in non-publicly-funded pre-school centres was banned by separate regulations under the Regulation of Care (Scotland) Act 2001 to bring them into line with publicly funded pre-school centres where physical punishment is already banned. However, babysitters and nannies working in the child's home are not banned from using physical punishment. They are subject to the ground rules set by parents, so that discipline within the home can be consistent.

Children in detention

Article 37

225 The 2002 Concluding Observations urged a review of the use of restraints and solitary confinement for children. The Executive's policy is to avoid, wherever possible, depriving under 16s of their liberty under any circumstances and if it is necessary, it must be for the shortest appropriate period of time. The Executive is committed to ensuring that all children who are detained, either in secure accommodation or in a young offenders' institution ( YOI) are properly protected and their rights protected. Children should not be restrained or held in solitary confinement unless absolutely necessary for their own safety, or the safety of others. Staff are appropriately trained in restraint techniques and these would only be applied as a last resort. Similarly being held in solitary confinement would be a last resort and under supervision guidelines.

226 To help facilitate this, the Executive supported the publication of Holding Safely. The Executive has also funded a training programme to instruct secure unit staff on safe restraint policies, risk assessment and recording of occasions when children are restrained by staff. The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 reflect this policy, as does the inspection practice of the Care Commission. Scottish Prison Service staff are trained in the use of restraints as per the SPS Control & Restraints Manual. The Prison & Young Offenders Institutions (Scotland) Rules 2006 sanction the use of restraints, and include conditions governing the use of restraints; the use of solitary confinement; temporary confinement in a special cell, and temporary confinement to cell. These Rules provide that no prisoners including those under 18 can be placed under restraint as a punishment. They can only be restrained when considered necessary during the management of particular incidents within the YOI or during escort outwith secure prison boundaries. They can only be held in solitary confinement where there has been a serious breach of prison rules. The use of restraints and solitary confinement is frequently subject to review.

227 Detailed Care Standards published by the Care Commission require that children held in a secure setting have suitable care, accommodation, access to education, health care and other services as well as a right to privacy. In some cases however, where there is a risk of self harm, the right to privacy must be carefully balanced with the right to life when considering issues such as suicide. Family visits are actively encouraged where appropriate to maintain a right to family life. Policies and procedures in Scottish secure units are inspected against these care standards. All prisoners in Scottish prisons, including under 18s, have suitable care, accommodation, access to education (this is compulsory for those under 16 and voluntary for those aged 16 to 18), health care and other services as well as a right to privacy. SPS has a suicide prevention strategy, Act 2 Care, that allows prisoners to be held in such conditions to prevent self-harm. Visits are essential to the prison regime and prisoners have a right to family visits. Prison regimes and the application of the Prison & Young Offenders Institutions (Scotland) Rules 2006 are independently inspected by the HM Chief Inspector of Prisons. There is also an independent Visiting Committee appointed by Scottish Ministers which reviews the application of the 2006 Rules in YOIs.

228 The current redevelopment of the Scottish secure estate will ensure that there is adequate accommodation provision to allow young people to be held safely, but without subjecting them to periods of solitary confinement away from the main accommodation. The Executive has also established the Intensive Support Fund which has made provision for Who Cares? Scotland to provide a service to all young people in secure to allow them to raise any issues regarding restraint or inappropriate confinement. All those in prison, including under 18s, have access to the Prisoners Complaints procedure, which allows them to raise any concerns about treatment whilst in prison. This process endeavours to resolve issues locally but can be escalated to an independent Complaints Commissioner. Prison Officers also have an advocacy element to their Personal Officer role.

229 Under 18s in custody in young offender institutions cannot be subjected to physical punishment or any form of torture, inhumane or degrading treatment. Article 3 of ECHR, protection from torture and inhuman or degrading treatment or punishment was enshrined in UK law by the Human Rights Act. Young offenders' circumstances are regularly reviewed to ensure that child protection is equal to that of other children. While in custody children will be provided with health, education and welfare services that are subject to constant review.

C) FREEDOM OF EXPRESSION

Articles 12 and 13

230 The Human Rights Act 1998 enshrined the European Convention on Human Rights into UK law, including Article 10 the right of free expression. In addition, the terms of section 29 of the Scotland Act 1998 make it outwith the competence of the Scottish Parliament to enact legislation which is incompatible with ECHR; while section 57 prohibits the Scottish Executive from acting in a way that contravenes the Convention rights.

D) FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

Articles 14 and 30

General provisions

231 Article 9 of ECHR, the right to freedom of thought, conscience and religion was enshrined in UK law by the Human Rights Act. This guarantees that people in Scotland can think what they want and can hold, practice and observe any religious belief. People cannot be forced to follow a particular religion and cannot be stopped from changing their religion.

232 Freedom of religious expression allows any member of a church or faith to practise their religion. None of the world faiths or the use of any language are prohibited in Scotland. The One Scotland Many Cultures campaign promotes the value of a diverse Scotland. Teaching in schools is primarily in English, but language support is provided for pupils who speak other languages until their English is of a sufficient level to enable them to participate in class. Some cultures and faiths provide language training in their mother tongue to enable children to keep their language skills.

Religious education in schools

233 The Education (Scotland) Act 1980 imposes a statutory duty on local authorities to provide religious education and religious observance in Scottish schools. Scottish Ministers believe that religious and moral education, complemented by religious observance, makes an important contribution to the personal and social development of our children as informed and responsible citizens. The aim of religious and moral education in Scotland is to help pupils develop a knowledge and understanding of Christianity and other world religions and to recognise religion as an important expression of human experience; appreciate moral values such as honesty, liberty, justice, fairness and concern for others.

234 Parents have a legal right to withdraw their children from religious and moral education and religious observance. Parents should be informed of this right and have their wishes respected. Where a child is withdrawn, schools should make suitable arrangements for the child to participate in a worthwhile alternative activity. In no circumstances should a child be disadvantaged as a result of withdrawing.

Looked after children

235 Guidance under the Children (Scotland) Act 1995 states that when considering the type of placement to be chosen for a child, regard should be paid to their racial, religious, cultural and linguistic background. As far as possible this background should be catered for within the placement, with carers, or one or more staff members, sharing the child's religion and heritage. Where a child is placed away from home, the social worker and the child's carers should discover whether the child practised any aspect of his or her religion when he or she was at home and provide opportunities and encouragement for this to continue. Where a child is placed in residential care, the local authority must consult with the establishment and ensure that the child is brought up in his or her religious persuasion.

236 In addition, when inspecting care services, the Care Commission takes into account Care Standard 9(5) which provides that children "can make an informed choice about whether or not to follow a faith. Depending on your age, the views of your family will be taken in to account. You will receive support and practical help if you choose to follow a faith". Standard 14 also provides that "Staff will respect your wishes about the private aspects of your life and your religious, cultural, political, social and sexual preferences. They give you privacy and respect confidentiality".

E) FREEDOM OF ASSOCIATION AND PEACEFUL ASSEMBLY

237 Article 11 of ECHR, the right to freedom of association and assembly was enshrined in UK law by the Human Rights Act. This protects the right to protest peacefully by holding meetings and demonstrations. These rights apply equally to adults and to children.

238 There has been some concern expressed that the dispersal powers in Part 3 of the Antisocial Behaviour etc. (Scotland) Act 2004 conflict with Article 11 of ECHR and Articles 15 and 31 of the UNCRC. All of the measures in the 2004 Act, including the dispersal powers, comply with ECHR. Furthermore, as indicated in the relevant statutory guidance, the dispersal provisions in the Act are not appropriate for industrial disputes, demonstrations or other public processions which either require permission or are exempt from requiring permission under the Civic Government (Scotland) Act 1982. Police powers in these situations will be governed by the common law and the Public Order Act 1986 as appropriate.

F) PROTECTION OF PRIVACY

Article 16

239 Article 8 of ECHR, the right to respect for private and family life was enshrined in UK law by the Human Rights Act.

240 When inspecting care services, the Care Commission takes into account Care Standard 14 which provides that "Staff will respect your wishes about the private aspects of your life and your religious, cultural, political, social and sexual preferences. They give you privacy and respect confidentiality". The same standards apply within residential and secure care.

G) ACCESS TO APPROPRIATE INFORMATION

241 The Executive is committed to making appropriate information available to children and their families. Parenting Across Scotland ( PAS) are funded to provide a focus for issues affecting parents and families in Scotland today. PAS is a partnership of voluntary organisations which use their experience of working parents to find ways of better supporting parents and families as well as incorporating the parental voice in the policy-making process.

242 As part of the eCare children's services pilots, the Executive funded work by Glasgow City Council (Stuff About Me ( SAM)) on how children might access electronically information held about them by education, health and social work.

243 Figures recorded in 2004-05 found there were 545 public libraries and 82 mobile libraries in Scotland which were accessible to children. There are also more than 400 libraries located within secondary schools and more than 2000 primary schools with some level of library provision.

Freedom of information

244 The Freedom of Information (Scotland) Act 2002 came into force in January 2005 and applies to all public authorities that are listed in that act. It provides for the right of wide general access to information held by those authorities subject to clearly defined exemptions and conditions.

Protection of children from inappropriate material

245 In 2004 the Executive launched an internet safety campaign and a new website aimed at parents called www.chatsafer.co.uk which provides information and advice to parents and children on how to stay safe when using the internet and mobile phones. For example, it offers advice on how to set up filtering systems on a PC and block unsuitable material, what to do if a child is sent unsuitable material by e-mail or text and a guide to commonly used web-jargon which parents may not understand but could be important in protecting their child. This campaign is linked to the UK-wide Think U Know campaign run by the Child Exploitation and Online Protection Centre.

246 The Executive also published advice in March 2003 on the safe use of the internet at www.scotland.gov.uk/clickthinking to support local authorities in their role of managing the risk associated with internet access. A paper copy was sent to all local authorities.

247 The internet is a reserved matter and the Executive has close links with the UK Home Office on internet safety and developments.

« Previous | Contents | Next »