Common Law
3.1 The law in Scotland recognises a parent’s right to administer moderate corporal punishment to his or her child. Such punishment, if within the bounds of what a court considers reasonable, will not expose the parent to liability to damages for assault or to a criminal conviction for assault. Certain other people, such as teachers, have a similar right of reasonable chastisement at common law, but this has been restricted for teachers by the Education (Scotland) Act 1980.
The Children and Young Persons (Scotland) Act 1937
3.2 The Children and Young Persons (Scotland) Act 1937 (‘the 1937 Act’) provides a statutory basis for the protection of children from cruelty but also recognises the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to the child. The exercise of this right, which lasts until the child is 16, must be in accordance with the welfare principle in Section 1 of the Children (Scotland) Act 1995 - that parental responsibilities must be exercised in the interests of the child.
3.3 Section 12 of the 1937 Act is set out in Annex C. Excessive physical ill-treatment of a child is grounds for criminal proceedings under Section 12, as well as for the common law offence of assault. It will also constitute grounds for compulsory measures of supervision under section 52 of the Children (Scotland) Act 1995.
Deciding factors — Reasonable chastisement
3.4 In deciding if any punishment is excessive courts look at all the circumstances of the case including the age, sex and any known disabilities or weaknesses of the child. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration and its physical and mental effects are all to be taken into account. The force must be moderate, and not inspired by vindictiveness. In order to obtain a conviction the court has to be satisfied beyond reasonable doubt that the accused has acted with the necessary evil intent. 11
3.5 In the case of someone with parental responsibilities and rights or with lawful control of the child, the prosecution must prove that the punishment went beyond "reasonable chastisement." Scottish case law recognises that no crime is committed provided the force used is moderate; it is irrelevant that the parent lost his or her temper at the time of the chastisement. Loss of control or temper will not prevent a conviction if the intention to injure, as opposed to discipline, the child can be inferred from the severity of the parent’s conduct.
3.6 The standard of proof in criminal courts is "beyond reasonable doubt". As in England and Wales, the burden falls on the prosecution to establish that the conduct was of a degree or kind which in itself was beyond what is permissible.
Penalties
3.7 If a case is prosecuted as assault under the common law then the maximum penalty depends on the court in which the case is heard. In the Sheriff Court the maximum is 3 years’ imprisonment (6 months if heard by a sheriff without a jury and the accused has a previous conviction for violence, or 3 months where there is no such previous conviction). In the High Court it is life imprisonment.
3.8 The maximum penalty on conviction under the Children and Young Persons (Scotland) Act 1937 is a fine or 10 years’ imprisonment.
Parental responsibilities and rights
3.9 Under Section 1(1) of the Children (Scotland) Act 1995 a parent has certain responsibilities in relation to his or her child. These include the responsibility -
(a) to safeguard and promote the child’s health, development and welfare, and
(b) to provide direction and guidance to the child in a manner appropriate to the stage of development of the child.
Parental responsibilities apply only in so far as is practicable and in the interests of the child, and until the child reaches the age of 16.
3.10 Section 2 of the Act sets out a parent’s rights, including the right "to control, direct or guide ... the child’s upbringing". Parental rights exist only to enable a parent to fulfil his or her parental responsibilities. The Act (in Section 1(3)) also grants to a child, or any person acting on his behalf, title to sue in any proceedings as respects those responsibilities. Under Section 3(5) of the 1995 Act a person with parental responsibilities may arrange for some or all of them to be fulfilled or exercised on his or her behalf.
Who has parental responsibilities and rights?
3.11 Part I of the Children (Scotland) Act 1995 sets out who has parental responsibilities and rights.12 However a court can grant or take parental responsibilities and rights away from anyone, if it is in the best interests of the child. The people who normally have them include:
Physical punishment
3.12 Scottish civil law provides that a person whose conduct causes harm to others may be required to pay damages to the person they have harmed. Such claims for damages are actionable in the civil courts. The general term used to describe this area of law is delict. The harm inflicted on a child as a result of physical punishment may be such a delict. Unlike the criminal law, intent does not need to be proven in such a claim. Therefore, an action that was reckless or negligent could result in a successful claim for damages. However, as noted above, a parent has a right to administer reasonable corporal punishment to his or her child and could claim that the punishment was reasonable. The burden of proof in respect of the reasonableness of the punishment lies on the defender and the standard of proof is "on the balance of probabilities" rather than the stricter proof in criminal cases of "beyond reasonable doubt".
3.13 Where children are looked after by those other than their own parents there are clear legal restrictions in place in respect of physical punishment.
The Education (Scotland) Act 1980
3.14 Section 48A(1) [abolition of corporal punishment] provides:
"Where, in any proceedings, it is shown that corporal punishment has been given to a pupil by or on the authority of a member of the staff, giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of the staff by virtue of his position as such."
Local authorities
3.15 Where local authorities have direct responsibility for looking after children there are limitations on the use of physical punishment.
3.16 No child can be placed with a foster parent unless that person has entered into a written agreement with the local authority which includes agreeing not to administer corporal punishment to the child.14
3.17 For children who are placed in residential establishments, the use of corporal punishment is forbidden.15
State Schools and other publicly funded educational provision
3.18 Corporal punishment is prohibited in state schools and for publicly funded pupils in independent schools in Scotland under Section 48A of the Education (Scotland) Act 1980.16 The provisions in Section 294 of the Education Act 1993 (that where corporal punishment is administered, the punishment should not be inhuman or degrading) also extend to Scotland.
Provision for pre-schoolers
3.19 Where pre-school provision is delivered in local authority nursery schools or classes, Section 48A(1) of the Education (Scotland) Act 1980 applies (see para 3.14). Local authorities can also commission pre-school education from private and voluntary sector providers. The Scottish Executive Education Department requires, as a condition of receipt of grant for pre-school education, that these centres give no corporal punishment.
3.20 Paragraph 28 of Annex A of the Scottish Executive’s grant offer letter states: "pre-school centres must ensure that no child for whom grant-funded pre-school education is provided is given corporal punishment by any person employed by, or connected with, the centre."
Youth Workers
3.21 Youth workers can take youngsters to camp or on trips. They are not specifically barred from using corporal punishment when they have lawful control or charge of the child or young person. Many will ask parents to give them these rights formally when arranging the trip.
Childminders and other childcare providers
3.22 Childminders and other childcare providers are not prevented by law from using corporal punishment on children they look after. Such carers who have lawful control or charge of the child would be covered by the provision in Section 12 of the Children and Young Persons (Scotland) Act 1937. It is a matter for the parents to decide whether physical punishment is acceptable to them and to come to agreement with the carer as to when this is allowed.
Babysitters and other members of the family
3.23 Parents have a duty to ensure that their child is looked after. Parents can lawfully arrange for others, such as family members or other adults, to look after their child temporarily. Anyone with lawful control or charge of the child would be covered by the provision in Section 12 of the Children and Young Persons (Scotland) Act 1937. It is a matter for the parent to decide whether physical punishment is acceptable and to agree with the temporary carer as to when this is allowed.
European Convention on Human Rights
3.24 The UK has been bound by the European Convention on Human Rights (ECHR) since 1953. It has not until recently formed part of domestic law, which the courts in Scotland and England can apply directly. However, under the Scotland Act 1998 all the matters devolved to the Scottish Parliament and the Scottish Executive must be dealt with in accordance with the ECHR. Any contraventions can be dealt with in the Scottish courts. When the Human Rights Act 1998 comes into effect, the ECHR will be able to be applied in all courts in the United Kingdom.
Article 3 provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 8 provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
United Nations Convention on the Rights of the Child
3.25 This Convention binds the UK, though its provisions do not have the force of law in Scotland and individuals do not have a remedy in the courts. Article 19(1) provides that states must:
"take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent maltreatment or exploitation including sexual abuse, while in the care of parent(s), guardian(s) or any other person who has care of the child."