1.1 One of the most difficult skills for parents to exercise is to apply consistent and effective guidance to their children, to enable them to develop an understanding of what is acceptable and appropriate behaviour and grow up into responsible and social adults. On the one hand, applying appropriate discipline - in the sense of responding consistently to a child’s behaviour, and setting clear boundaries - is part of bringing up children well. A failure to provide guidance and set boundaries is in itself a form of neglect that can be very damaging to a child. On the other hand, discipline that is harsh can be damaging to a child both physically and emotionally.
1.2 Parents use many methods to guide and discipline their children, including showing and explaining what is right or wrong; physically restraining a child from harming themselves or others; encouraging and rewarding what is felt to be good behaviour; and punishing what is felt to be bad or dangerous behaviour.
1.3 The law recognises that there may be occasions when moderate and reasonable physical punishment of a child by a parent may be appropriate. Currently, where a parent - or somebody acting on their behalf 1 - physically punishes a child and is charged with assault, they may claim that it was ‘reasonable chastisement’. Unless the prosecution proves that the punishment went beyond reasonable chastisement, then the accused person cannot be convicted of the assault.
1.4 The concept of ‘reasonable chastisement’ has its origins in Victorian times. An English case taken to the European Court of Human Rights has highlighted that the law there needs modernising to make sure that children are protected from harsh physical punishment. The European Court ruled that, because of the way in which the concept of ‘reasonable chastisement’ was applied, the law in the UK had failed to protect a boy from ‘inhuman or degrading treatment’ in the form of severe beatings, in contravention of the European Convention on Human Rights. As a result of this ruling, we in Scotland must also consider the need to clarify or change Scots law in a way that takes account of the Court’s judgment.
1.5 Social attitudes change over time, and with them the public’s attitude to corporal punishment. In 1992 the Scottish Law Commission’s Report on Family Law recommended that there should be no defence in cases of corporal punishment using a stick, belt or other object (see paras 2.8 — 2.12). This recommendation was rejected during the passage of the Children (Scotland) Act 1995 and remains unimplemented. More recently, there has been strong public support for the abolition of corporal punishment by childminders, day-care providers and non-publicly funded pre-school education.
1.6 Criminal law, family law and education law are matters devolved to the Scottish Parliament under the Scotland Act 1998. Any change to the law on corporal punishment in Scotland will therefore be a matter for the Scottish Parliament.
1.7 A similar consultation paper on the law in England and Wales was issued in England by the Department of Health on 18 Jan 2000 2. A parallel consultation will be undertaken in Wales by the National Assembly for Wales. It will be for the United Kingdom Government and Parliament at Westminster and the National Assembly for Wales to change the law for England and Wales. In Northern Ireland a separate consultation exercise will be led by the Department of Health, Social Security and Public Safety.
1.8 The UK Government and the Scottish Executive fully accept the need for clarification and change. The harmful and degrading treatment of children can never be justified. The Scottish Executive is inclined to the view that the right way forward is not to make unlawful all smacking and other forms of physical rebuke. Whilst other forms of exercising discipline are available and usually preferable, many parents find on occasion that a mild physical rebuke has a place. However, there is a common sense distinction to be made between the sort of mild physical rebuke which is normal in families, and which most loving parents consider acceptable, and the beating of children. The law needs to be clarified to make sure that it properly reflects this common sense distinction.
1.9 There has, however, been strong public support for the abolition of corporal punishment by childminders, day-care providers and non-publicly funded pre-school education. These settings could not be covered by the Standards in Scotland’s Schools etc. Bill as they do not fall within the scope of education law. This is an area which we feel should be covered in any future legislation on corporal punishment.
1.10 The purpose of this consultation paper is to explore how we can modernise the law relating to the physical punishment of children, so that it better protects children from harm. The aim of the consultation is to address two specific issues.
First, within the context of a modern family policy, in a responsible society, where should we draw the line as to what physical punishment of children is acceptable within the family setting?
Second, how do we achieve that position in law?
1.11 The paper sets the issue of physical punishment in the context of the Scottish Executive’s wider policy aims in support of families, and summarises current prevailing attitudes towards the issue. It outlines the existing law; explains in more detail why change is needed; sets out our proposed way forward and options for change; and invites your views.
Comments on the proposals discussed in this paper may be sent by 21 April 2000, to:
Perry Clarke
Scottish Executive Justice Department
Civil Law Division
Spur V1, Saughton House
Broomhouse Drive
EDINBURGH
EH11 3XDTel: 0131 244 2783
Fax: 0131 244 2195
E-mail responses can be sent to — civil.law.policy@scotland.gov.uk
Please ensure that:
The Scottish Executive has a policy of publishing responses to consultation documents. If you wish your response to be treated as confidential, please let us know. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Getting further copies
Further copies of this consultation paper can be obtained from Mary Kendall at the above address (0131 244 3581), or from The Stationery Office Bookshop, 71 Lothian Road, Edinburgh EH3 9AZ (0131 228 181)
This paper can also be found on the Scottish Executive’s home page on the Internet, under "publications". The address is: www.scotland.gov.uk