The Physical Punishment of Children in Scotland: A Consultation

Annex A

Public opinion in Scotland

Extract from the Scottish Law Commission Report on Family Law 1992 ¹

2.100 To test the view that drawing a distinction between ordinary safe smacking, on the one hand, and canings, beltings or beatings with objects of various sorts, on the other, might be a generally acceptable way of clarifying and limiting the extent of the parental right of chastisement we commissioned a public opinion survey, which was carried out for us by System Three Scotland in September 1991. We sought views on the acceptability of

(a) smacking with the open hand in a way not likely to cause lasting injury, or

(b) hitting with a belt, stick or other object in a way not likely to cause lasting injury.

The interviewers asked these questions in relation to children of different ages because we thought it possible that some people might be more tolerant of, say, caning a 15 year old than caning a 3 year old. Respondents were first asked the following question.

"Thinking first of a 3 year old child who has behaved badly, do you think it should be lawful or against the law for a parent to

(a) smack the child with the open hand in a way not likely to cause lasting injury

(b) hit the child with a belt, stick or other object in a way not likely to cause lasting injury?"

Respondents were then asked the same question in relation to a 9 year old and a 15 year old.

2.101 In relation to a 3 year old who had behaved badly 83% of the respondents considered that it should be lawful for a parent to smack the child with the open hand in a way not likely to cause lasting injury. However, 94% considered that it should be against the law for a parent to hit the child with a belt, stick or other object, even if the hitting was not likely to cause lasting injury. Only 3% thought that it should be lawful for a parent to hit a 3 year old child with a belt, stick or other object. In relation to a 9 year old, 87% thought that it should be lawful to smack, but 91 % thought it should be against the law to hit with a belt, stick or other object. Only 7% thought that it should be lawful to hit a 9 year old with a belt, stick or other object. In relation to a 15 year old, 68% thought that it should be lawful to smack but 85% thought that it should be against the law to hit with a belt, stick or other object. Again, only a small minority (10%) thought that it should be lawful for a parent to hit a 15 year old with a belt, stick or other object. The combined results for all three sets of questions were as follows.

(Unweighted base: 1,055)

Older respondents were, on the whole more likely to think that corporal punishment with a belt, stick or other object should be lawful. For example, only 6% of those in the 15-44 year old age group thought this should be lawful in the case of a 15 year old, whereas 11% of those in the 45-64 year old age group and 18% of the over 65’s did so. Other variations in attitudes among sub-groups of the population were found. One of the most interesting was that respondents with children in the household were two to four times less likely to think that hitting with a belt, stick or other object should be lawful than were respondents with no children in the household. There was, however, very little difference between these two groups so far as the lawfulness of smacking was concerned. The fact that only 1% of those with children in the household thought that it should be lawful to use a belt, stick or other object on a 3 year old and that the corresponding figures for 9 year olds and 15 year olds were only 3% and 6% respectively is particularly significant as it is this group which contains those who are in a position to claim that their parental rights would be affected by the relevant legislation.

2.102 The results of the survey confirmed that the distinction between smacking and the use of belts, sticks or other objects was indeed one which was likely to be acceptable to the great majority of the general public at this time. A solution based on this distinction would not please the small minority who think that it should be lawful for a parent to hit his or her child with a belt, stick or other object, nor the larger minority who think that all smacking should be against the law, but it would be a practicable way forward which would improve the lot of some unfortunate children. It would not be inconsistent with education campaigns aimed at discouraging corporal punishment generally and emphasising the benefits of alternative child-rearing practices.

2.103 Some of those who commented on the discussion paper suggested that, even if nothing else were done section 12(7) of the Children and Young Persons (Scotland) Act 1937 should be repealed. This is the provision which, in the context of cruelty to children, expressly refers to the parental right to administer punishment. A number of our respondents regarded it as an unfortunate and confusing anachronism. Section 12(7) can be properly understood only by reference to section 12(1) which provides as follows.

Section 12(7) then provides that:

"(7) Nothing in this section shall be construed as affecting 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 him."

It should be noted that section 12(7) does not create a new defence. It merely refers, presumably for the avoidance of doubt, to an existing common law right to administer punishment. If it were repealed, the common law defence of lawful chastisement would still remain. The law would still distinguish between an assault on the one hand and lawful chastisement on the other. However to repeal section 12(7) at this stage without doing more would probably create confusion. People would wonder whether the express reference to "assaults" in section 12(1) covered an ordinary smack, or at least one which a court considered to have been "unnecessary". There would be an argument that section 12(7) must have had some purpose and that its repeal must have been intended to effect some change. The risk of confusion is caused by the reference to assault in section 12(1) and by the fact that, in Scots law, quite trivial blows, slaps or smacks can constitute assault. The references to assault in section 12(1) are plainly unnecessary as assault, or aiding and abetting assault, would in any event be a common law offence. One option therefore would be to remove the unnecessary references to assault in section 12(1). Assault would be left to turn on the common law. If this were done section 12(7) would clearly be inappropriate and could safely be repealed. There is no existing common law right to ill-treat, neglect, abandon or expose a child in a manner likely to cause him or her unnecessary suffering or injury to health and it would be absurd and objectionable to preserve a provision which seemed to suggest that there was. We are in favour of repealing section 12(7). At best it is unnecessary. At worst it conveys the message that cruelty to children is acceptable if done in the name of punishment. If the repeal was accompanied by the other changes we are recommending there would be no risk of confusion so far as those exercising parental responsibilities or rights are concerned.

2.104 It remains to consider the positions of teachers and of those such as step-parents who have care or control of a child in a family situation but who do not have parental responsibilities or rights. So far as teachers are concerned, it would be going beyond the scope of this report, and beyond the scope of our consultation, to make any recommendation. The existing position, whereby corporal punishment is effectively outlawed in some schools but not, or not entirely, in others 2 may seem anomalous and we did receive suggestions that it should be changed. It might seem even more anomalous if some teachers were to have a greater right than parents to cane or belt children under their control. However, that is not a matter of family law and not a matter for us. The position of step-parents, cohabitants, foster parents or other people who have care or control of a child in a family situation but who do not have parental responsibilities or parental rights is different. We have already recommended that they should have certain powers to do what is reasonable in the circumstances for the purposes of safeguarding the child’s health, development or welfare.3 At present, such people are regarded, while they have charge or care of the child, as having the defence of reasonable chastisement available to them.4 It would clearly be anomalous if they were to have greater rights to administer corporal punishment than the child’s own parent. We therefore suggest that it should be made clear in the new legislation that, without prejudice to the position of teachers, a person who has care or control of a child but does not have parental responsibilities or parental rights in relation to the child should have no greater right than a parent has to administer corporal punishment to the child.