2.1 The success of families in bringing up children will shape the future, not only of those individual children, but of our whole future society. However, being a parent, whatever the circumstances, can be hard work as well as tremendously rewarding. And today, many families feel under stress, often linked to family breakdown or social disadvantage.
2.2 The Scottish Executive recognises the importance of the family and its key influence on our society, and strengthening the family has been at the heart of much of our policy development. In 1999 we consulted on Improving Scottish Family Law, and in January 2000 we announced our proposed way forward in a number of areas. This will include better targeting of funds to voluntary organisations which provide support and mediation services to families in transition.
2.3 One of our main areas of concern is domestic violence and abuse. We intend to improve the protection available to members of a family who are at risk of domestic abuse. The coverage of matrimonial interdicts will be widened and improved. This will assist children at risk of domestic abuse primarily affecting a parent.
2.4 At the same time as protecting spouses and partners, we must ensure that children are protected from abuse of discipline by adults caring for them. There must be a clear line between reasonable physical chastisement and abuse. This paper seeks to set that line.
2.5 Our approach is to avoid heavy-handed intrusion into family life, but rather to put in place policies which are supportive of families, to support organisations which help and encourage parents in their often complex role and to help parents recognise that asking for help is all part of responsible parenting. This consultation paper continues within that approach.
2.6 Many parents and organisations working with children have effective methods of discipline that do not involve physical punishment. These might include, for example, keeping the child in, sending the child to his or her room, stopping the child doing something he or she likes (such as watching the television), or withholding pocket money. Rewarding good behaviour with praise and, if appropriate, privileges is just as important as sanctioning bad behaviour. These methods are likely to be the most satisfactory and desirable way of resolving most conflict situations, for both parents and children. Children need to be helped to develop their own sense of right and wrong, to guide them as to how to behave when their parents are not present.
2.7 There may still be occasions, however, when parents consider it appropriate to discipline a child through physical punishment.
2.8 The Scottish Law Commission Report on Family Law 1992 considered corporal punishment of children. 3 They produced a thorough and solid analysis, based on responses to a consultation paper.4
2.9 They did not favour outright abolition of corporal punishment, which would "criminalise ordinary safe smacks of the type occasionally resorted to by many thousands of normal affectionate parents."5 Nor did they favour making corporal punishment unlawful for civil law purposes, but not for criminal law purposes. This would mean that a parent could be sued by a child for damages, but could not be prosecuted unless the conduct fell outside what is permitted by the present law.
2.10 Their tentative conclusions pointed towards smacking being acceptable while canings, beltings and beating with implements would not. In this sensitive area involving family life, we consider it very important that the law commands public acceptance. Social surveys monitoring public attitudes are one barometer of public mood, and a public opinion survey was therefore conducted for the Scottish Law Commission in Scotland during 1991. The broad result was that between 68% and 83% felt that smacking children should be lawful, while 85% to 94% felt that beating with an implement should be unlawful.6 The results are shown in more detail in Annex A. These results are broadly in line with a more recent Office of National Statistics survey in England quoted in Annex B.
2.11 The Scottish Law Commission Recommendation was therefore:
(a) In any proceedings (whether criminal or civil) against a person for striking a child, it should not be a defence that the person struck the child in the purported exercise of any parental right if he or she struck the child
(i) with a stick, belt or other object; or
(ii) in such a way as to cause, or to risk causing, injury; or
(iii) in such a way as to cause, or risk causing, pain or discomfort lasting more than a very short time.
(b) a person who has care or control of a child but who does not have parental responsibilities and rights in relation to the child should have no greater right than a parent has to administer corporal punishment to the child.
(c) Section 12(1) of the Children and Young Person (Scotland) Act 1937should be amended by deleting the references to assault, which is adequately covered in the common law. 7
(d) Section 12(7) of the Children and Young Person (Scotland) Act 1937 should be repealed.8
2.12 This recommendation was not accepted by the then Government and no such provision was included in the Bill which eventually became the Children (Scotland) Act 1995. During the passage of the Bill an amendment along these lines was tabled but was defeated.9 There were fears that the introduction of a distinction between smacking and hitting with an implement would devalue the protection available to a child who was smacked.
2.13 In eight European countries 10 there are explicit bans on physical punishment by parents and all other carers. A number of individuals and UK organisations representing children’s rights and interests have argued that the most appropriate, and indeed the easiest, way to protect children from harm is to follow the example set in these countries. As a first step, they are proposing that justification of an assault on a child on a basis of ‘reasonable chastisement’ should be removed, thereby putting children in exactly the same position as adults in respect of the law on assault. A second step would be to introduce a law (which need not have criminal sanctions attached) which would specifically ban physical punishment of children by their parents.
2.14 These organisations argue that in cases of assault between adults, cases of a minor nature are not taken forward by the Crown Office and the procurators fiscal. Likewise with children, they believe, the removal of a basis of ‘reasonable chastisement’ would not result in a light smack by a parent leading to prosecution. They argue that the greater possibility of prosecution for assault, or even the existence of a law prohibiting the physical punishment of children, would not lead to an increase in cases of assault, but would signal the unacceptability of physical punishment. This would help to influence social attitudes, and encourage the use of alternatives to physical punishment.
2.15 The Scottish Executive is inclined to the view that it would be unacceptable to outlaw all physical punishment of a child by a parent. We do not believe the majority of parents in Scotland would support such measures. The Scottish Law Commission did not recommend such a step. Nevertheless, we would be grateful for specific views on this matter in response to Question 1 below.
2.16 In Part 5 of this paper, which sets out our proposed way forward and options for change, the emphasis is on clarifying and if necessary restricting the right of parents and people with lawful control of the child to administer corporal punishment. We must do this to protect children.
Question 1. Do you agree with the Scottish Executive that parents should continue to be allowed to use reasonable physical punishment for their children?