OUR PROPOSALS
Set out the definition of reasonable chastisement on a statutory basis
5.1 In order to meet the criticism that the current law fails to protect children from harsh or violent physical punishment, we propose to define in legislation what is meant by ‘reasonable chastisement’, or at least to outline the factors which should be taken into account by a Court when considering whether physical punishment has been moderate and reasonable.
5.2 As a minimum, and in response to the European Court’s ruling, we are proposing that:
Proposal 1: The law should make clear that physical punishment which constitutes ‘inhuman and degrading treatment’ can never be justified as ‘reasonable chastisement’.
5.3 The Court stated that:
"ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim." 19
5.4 We are therefore further proposing that
Proposal 2: The law should explicitly set out that, in considering whether or not the physical punishment of a child constitutes ‘reasonable chastisement’, a Court should always have regard to:
a. the nature and context of the treatment;
b. its duration and frequency;
c. its physical and mental effects; and, in some instances,
d. the sex, age and state of health of the victim.
Question 2. Do you agree with the Scottish Executive proposals set out above?
Further options for change
5.5 The proposals outlined at 5.2 and 5.4 above set out what the Scottish Executive considers to be the minimum steps needed to clarify the law. We set out a number of further options for change below. If implemented, these would be in addition to implementation of the proposals above. We would welcome your comments on these options, to help us frame the law so that it best reflects a modern society’s view of what constitutes the ‘reasonable’ physical punishment of children.
5.6 It would be possible to add to, or elaborate upon the relevant factors outlined at para. 5.4 in setting out the factors which a Court must consider in determining whether physical punishment constitutes ‘reasonable chastisement’. For example, additional factors might include
a. the reasons given for the punishment,
b. how soon after the event it was given,
c. the persons involved,
d. the vulnerability of the child.
Question 3 What, if any, factors should the law require a Court to consider when determining whether the physical punishment of a child constitutes ‘reasonable chastisement’, over and above those factors set out in para. 5.4?
5.7 It would also be possible for the law to state that some forms of punishment could never be deemed ‘reasonable’. This might exclude as ‘reasonable’ any physical punishment administered to the head (so as to ensure that there could be no risk of damage to the brain or sensory organs), or shaking a child, which can cause brain damage. Drawing on the Scottish Law Commission recommendation, it might also exclude entirely the use of implements (e.g. canes, belts, slippers) in the physical punishment of a child, or the physical punishment of very young children e.g. under the age of one or two.
5.8 However, listing certain kinds of punishment as never being acceptable could be taken to imply that other kinds are acceptable. For example, someone might assume that administering electric shocks was lawful simply because it was not in a list of forbidden punishments. There are many kinds of punishment which could cause physical injury (e.g. blows to the stomach), and not all can be listed. There is a risk that to have a list at all might mislead people. 20
5.9 We would welcome your views on whether there are any forms of physical punishment which should never be deemed ‘reasonable’ under the law.
Question 4 Are there any forms of physical punishment which should never be capable of being considered as ‘reasonable’? Specifically, should the law state that any of the following can never be considered as reasonable:
a. Blows to the head (risking injuries to the brain, eyes and ears)?
b. Shaking children? (risking injuries to the brain)?
c. Using implements (e.g. canes, slippers, belts)?
d. The physical punishment of very young children (and if so, of what age)?
5.10 This option considers the issue of who should be able to administer reasonable chastisement in future. It asks whether this should be only those with parental responsibilities and rights (which would significantly restrict its application); to those acting with parents’ explicit permission; or to all those with lawful control of the child.
5.11 Currently, reasonable chastisement may be administered not only by parents 21but also by others with lawful charge of the children, except in those settings where the physical punishment of children has been specifically outlawed (see paras. 3.13 — 3.23). There is an implied delegation, from parents to those in charge of their children, of the parents’ right to apply moderate and reasonable physical punishment. If a
were looking after a child, for example, they would be able to claim that they had given reasonable chastisement even if a parent had not explicitly authorised them to smack a naughty child. In the English case of A. v the United Kingdom, a stepfather-to-be was able to do this.
5.12 What this option raises is:
Question 5: Who should be able to administer ‘reasonable chastisement’? Should it be:
a) Only those with parental responsibilities and rights under the Children (Scotland) Act 1995)?
b) As now, all those acting on behalf of parents in looking after children (except in settings where physical punishment has been outlawed)?
c) All those acting on behalf of parents, but only if they have been given explicit permission to physically punish the child?
Childminders and non-publicly funded pre-school centres
5.13 In the consultation preceding the Standards in Scotland’s Schools etc. Bill, many respondents felt that there should be a statutory ban on corporal punishment in all early years settings, not just publicly funded pre-school centres. A ban on corporal punishment in childcare centres, by childminders and in non-publicly funded pre-school centres could not be included in the Bill as corporal punishment in these circumstances does not fall within education law. If, however, it is decided as a result of this consultation that corporal punishment should be statutorily banned in these early years settings, then a suitable legislative vehicle would be identified for that purpose.
Question 6: Should there be a ban on corporal punishment in childcare centres, by childminders and in non-publicly funded pre-school centres?