SCOTTISH EXECUTIVE

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Report on Family Law

SCOTTISH LAW COMMISSION
(Scot Law Corn No 135)

Corporal punishment

2.67 Introduction. Under the existing law a parent has a right to administer reasonable 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 .¹ That the defence of lawful chastisement is a matter of having parental (or analogous) rights, and not just a matter of not having an evil intent, is shown by the consideration that a newsagent who inflicted physical punishment on a paper boy or girl for being late for work would clearly be guilty of an assault, even although the motivation might be reasonable punishment in the long term interests of the boy or girl. The parental right of reasonable chastisement is recognised by statute, along with the right of teachers and others. Section 12 of the Children and Young Persons (Scotland) Act 1937, on cruelty to children, provides in subsection (7) that:

"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."

The parental right of reasonable chastisement is also recognised in case law, although its limits are not always clear. ² Research in England in the 1970's showed that smacking of children was extremely common in all social classes. ³

2.68 For some time now there has been a body of opinion in favour of abolishing, or at least restricting, the parental right of corporal punishment. Several European countries have passed legislation purporting to remove or severely restrict the right. ⁴ The question of corporal punishment of children by parents, foster parents and others was debated in Parliament in 1989 during the proceedings on the Children Bill. In the House of Commons an attempt was made to introduce a new clause which, in civil proceedings, would have removed the defence of "reasonable chastisement" from parents, guardians -and others having custody or control of a child or young person. The motion to add the new clause attracted some support and some opposition but was eventually withdrawn. ⁵ In the House of Lords an amendment was moved to repeal section 1(7) of the Children and Young Persons Act 1933 ⁶ which corresponds to section

12(7) of the Children and Young Persons (Scotland) Act 1937 (quoted above). The amendment was opposed by the Government on the ground that it would "create complete obscurity" as to the position of a parent administering reasonable corporal punishment. ⁷ After a short debate the amendment was withdrawn. ⁸ Similar amendments at later stages in the House of Lords met with the same objection and were also withdrawn. At the Report stage in the House of Lords an amendment was moved with the objective of preventing corporal punishment of children in foster care. This amendment was the subject of a vigorous debate but was eventually defeated by 128 votes to 109. ⁹

2.69 Given the level of public and Parliamentary interest in this subject, and the developments in other countries, a discussion paper on parental rights which did not address the issue of the parental right to administer reasonable corporal punishment would have been incomplete. We were well aware, however, that this was a controversial and emotive issue. We therefore set out in the discussion paper, in deliberately neutral terms, the arguments which might be made for retaining or abolishing the right. Without expressing any preliminary view ourselves we invited views on the question-

"Should the parent's right to administer reasonable corporal punishment to his or her child be retained or abolished?"

2.70 Arguments for and against. In the discussion paper we suggested that the following arguments might be put forward for retaining a parent's right to administer reasonable corporal punishment. We deliberately refrained from expressing any view on their weight.

(a) If parents wish to bring up their children in this way, and if there is no danger of lasting harm, the State ought not to interfere.

(b) The fact that a minority of parents go beyond what is reasonable is no reason why the remainder of parents should be treated as criminals if they so much as slap a child on the hand.

(c) Children have to be taught standards of behaviour or not to do dangerous things. Sometimes, if a child is too young to be reasoned with, physical punishment may be the only "language" he or she will understand.

(d) Case law makes it clear that punishment must not go beyond what is reasonable. This provides a safeguard against abuse and provides a test which is capable of reflecting changes in knowledge and in general perceptions of what is acceptable.

(e) Even if it became unlawful for a parent to use corporal punishment on his or her child such a law would be unenforceable and would be broken on a very wide scale.

(f) Outlawing something which nearly all parents do from time to time will not stop those who really are doing their children harm and may prevent potential child abusers from seeking professional help -before its too late.

(g) The question has recently been debated in Parliament, in relation to the law of England and Wales, and the debates do not suggest that there is majority support for abolition.

2.71 We suggested, on the same non-committal basis, that the following arguments might be made for abolishing the parent's right.

(a) A child, like any other individual, has a right not to be assaulted.

(b) Even although it is unlikely that many prosecutions would result from parents hitting their children in a way which would be lawful under the existing law, the law should attempt to encourage restraint. Even a law which was difficult to enforce might have an effect on conduct and might thereby reduce abuse and make easier the conviction of abusers.

(c) The existing requirement of "reasonableness" is an inadequate safeguard. Different cultures adhere to different values and so long as corporal punishment is allowed to continue there will be no consensus on what is reasonable.

(d) If all corporal punishment is made unlawful there is less chance of violent abuse taking place. Parents will know where the line is drawn. There will be less chance of conduct which begins as chastisement ending up as violent abuse because a parent does not know his or her own strength or because the initial chastisement does not produce the desired response.

(e) We should follow the lead taken by Sweden, Finland, Denmark, Norway and Austria. An American assessment of the Swedish legislation reported that: ¹⁰

"The 1979 law is now taken for granted in Sweden. Whereas in 1981 parents reported 'thinking twice' before using any physical punishment, in 1988 parents simply say they do not use it. "

It does not appear that State intervention in Swedish family life has increased as a result of the legislation.¹¹

(f) The right to administer corporal punishment to pupils in state schools has been abolished,¹² and if that is right as a matter of principle it is difficult to see why it is not also right to abolish corporal punishment in the home.

(g) Some local authorities already prohibit all corporal punishment of foster children by local authority foster parents. If this is right for foster children why is it not also right for a parent's own children?

(h) The Committee of Ministers of the Council of Europe has recommended that member states should "review their legislation on the power to punish children in order to limit or indeed prohibit corporal punishment, even if violation of such a prohibition does not necessarily entail a criminal penalty".¹³

(i) The United Nations Convention on the Rights of the Child, adopted by the General Assembly in November 1989, requires 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 treatment, maltreatment or exploitation while in the care of parents, legal guardians or any other person who has the care of. the child.¹⁴

2.72 Results of consultation in general. We received over a hundred submissions on this issue, many of them very substantial and carefully argued. There was, as might be expected, a division of opinion. Of those who expressed a clear view one way or the other 57 supported retention and 35 supported abolition but there were many qualified responses (e.g. favouring abolition for civil law but not criminal law purposes; favouring a clarification or restriction of the right) and, in any event, on a matter of this kind it is the weight of the evidence and arguments which matters rather than the number of submissions one way or the other. ¹⁵ We have derived a great deal of assistance from the comments received. It is very clear that the debate is not about whether children should grow up with or without parental control or guidance. Virtually everybody agreed on the need for effective control and guidance, appropriate to the child's age and development. Many of those who supported the abolition of corporal punishment stressed that they did not advocate permissiveness and indeed that they regarded an excessively permissive attitude on the part of parents as harmful and irresponsible. The debate is about a particular method of parental discipline, not about the need for consistent discipline (among other things, such as care, affection, approval, stimulation and increasing opportunities for self-determination) in bringing up children.

2.73 Views of psychologists. The British Psychological Society recognised that the issue of corporal punishment was a complex one on which it was difficult to make short definitive statements. However, it was of the view that

"As a broad general principle, punishment, including corporal punishment, is seen as an inefficient method of modifying behaviour, being situation-specific and of short-term effect, and with a possibility of providing undesirable side effects of both fear and learned imitative behaviour. More socially desirable attitudes would be encouraged by alternative methods of managing behaviour, such as withdrawal of privileges and the rewarding of more desirable alternatives. "

The Society suggested that, as in the case of corporal punishment in schools, the burden of proof that corporal punishment of children was necessary rested with those who advocated its retention.

2.74 Dr Penelope Leach, in a very full and helpful submission, summarised a review of the literature by saying that,

"On the whole, then, the findings of experimental and applied human psychology provide less and less pragmatic support for physical punishment, or indeed for any punishment other than absence of the positive rewards that psychologists of all persuasions recognise as vital to learning. "

She pointed out that the sort of moderate physical punishment permitted by the law and practised by many parents was particularly unlikely to be effective.

"The scientific evidence suggests that if physical punishment is to be effective in modifying behaviour, it must induce a greater intensity of pain than would be acceptable to most parents. "

She referred to evidence from the social sciences that physical punishments tend to escalate over time and suggested that this could be accounted for by findings from research psychology that if punishment started by being mild, far more intense punishment was then required to suppress unwanted behaviour than if punishment was originally introduced at a reasonably intense level. On the important question whether "moderate and reasonable" physical punishment harmed children, she pointed out that there was no consensus among professionals as to what constituted harm. On one view any physical damage (as indicated, for example, by visible bruising) was harm. There was also a danger of serious injuries as a result of punishment which was intended to be moderate and reasonable but went wrong-because, for example, of misplaced blows that landed on the head or caused a child to fall, or because of a parent's ignorance of the vulnerability of the immature body of a small child. However, she observed that some experts considered that there was no convincing evidence of serious, lasting harm to the recipients of "moderate and reasonable" punishment. So far as emotional harm was concerned it was exceedingly difficult to establish a causal link between any particular experience in childhood and any particular characteristic in later life. However, there was

"an extensive literature associating parental physical punishment-especially its juxtaposition of love and pain, anger and submission-with a wide range of personality disorders and neuroses in adult life."

There was also an extensive body of research establishing a positive association between all levels of physical punishment and increased aggression in the children who received it and the adolescents and adults they became. Children had a tendency to model their behaviour on that of their parents. So it was not surprising that physical punishment, which would often be perceived by the child as aggression, had this effect. Dr Leach explained the mechanisms (including a need on the part of children to justify what their parents did) whereby attitudes favouring corporal punishment were transmitted from generation to generation. She referred to research indicating the value and effectiveness of firm, non-punitive discipline. Her conclusion was that a legal change removing the parental right to administer reasonable corporal punishment would be beneficial, as well as morally right.

"Its likely immediate effects would be to improve the childhood experiences and relationships of many. individuals; stimulate public discussion of parental responsibilities; remove overt public pressure on parents to hit their children; ease the work of child protection agencies; facilitate education in positive methods of discipline amongst parents and future parents and raise the social status of children. A composite longer-term effect could confidently be expected to include reductions in family-violence (including physical child abuse), bullying and disruptive behaviour in schools, juvenile delinquency and violent adult crime."

2.75 Dr Dorothy Rowe in her comments drew on over 25 years of experience as a clinical psychologist. She was in favour of a law forbidding parents to beat their children. She explained the negative and harmful conclusions which people actually drew from the experience of being beaten but also explained why a common response at the opinion poll level was "I was beaten as a child and it never did me any harm". This was because (a) people did not want to be publicly disloyal to their parents (b) they did not want to suggest that they had been harmed and thus reveal vulnerability and (c) if they were parents themselves they did not wish to raise questions about how they treated their own children. The responses would often be very different in private conversations with a trusted person at a deeper level. Dr Rowe's view was that none of the conclusions which people commonly drew from being beaten (eg "I am bad and unacceptable", "I have been treated unjustly", "I am afraid of the adult who beat me", "I must become indifferent to the pain") could ever promote health and happiness and harmonious relationships with other people. She concluded that

"The greatest harm which beating does is to prevent the person being beaten from recognising the harm which has been done to him. A law forbidding parents to beat their children may not prevent all parents from doing so but it would go a long way to helping us all recognise the harm which corporal punishment does."

2.76 Professor Schaffer, of the Department of Psychology at the University of Strathclyde, on the other hand, did not support abolition of the parental right to administer reasonable corporal punishment. He said that the effects of physical punishment depended on a large number of associated conditions-including the nature of the relationship between parent and child.

"In particular, it has been shown that punishment from a basically affectionate parent is more likely to produce the desired result than punishment from a cold or hostile parent. There is little evidence that punishment, in the context of a good relationship, creates maladjustment; when it occurs in the context of an unsatisfactory relationship any undesirable consequences are likely to be due to that relationship generally rather than to any one aspect of it such as punishment. "

Much depended also on whether punishment was accompanied by explanation, and on whether the child perceived it as just. Much also depended on the timing and intensity of the punishment and on the consistency with which the parent enforced rules. The characteristics of the child were also important:

"relatively non-aggressive children are likely to desist from the undesirable behaviour while aggressive children may persist in or even increase such behaviour when punished."

Professor Schaffer referred to the undesirable side effects which physical punishment might produce-such as the provision of an aggressive role model, the undermining of positive aspects of the parent-child relationship and the creation of an undesirable emotional atmosphere in the family-but said that none of these side effects was inevitable. They depended on the various conditions already mentioned.

"As far as long-term effects are concerned, there is a well-established association between parental use of physical punishment and children's aggression or delinquency. However, this applies primarily when punishment is frequent, harsh and erratic; this is likely to occur in particular types of families characterised by a general atmosphere of conflict and poor relationships. There is, in other words, no consistent evidence that physical punishment per se leads to increased child violence."

There was also the possibility that very aggressive children elicited more punishment from parents rather than the other way round. Professor Schaffer's general conclusion was as follows.

"Research provides little evidence that physical punishment per se leads to harmful consequences. It may do so under certain circumstances, but it appears to be those circumstances (with particular reference to conflict in the home, poor relationships and erratic child rearing practices) that are primarily responsible for ill-effects. Given the fact that the vast majority of parents believe in the use of physical punishment and, moreover, seem to have no difficulty in drawing the line between reasonable and excessive use, there appears to be no reason to abolish their right to discipline their children in this manner. On the contrary, such a measure aimed at one specific aspect of the parent-child relationship may draw attention away from the real need, i.e. to provide the much more broadly based programme of parent support and education that is required if one is to improve the lot of children in the long term."

2.77 Views of legal commentators. Most of the legal respondents to the discussion paper, including the Court of Session judges, the Sheriffs' Association, the Law Society of Scotland, the Procurators Fiscal Society and the Family Law Association, thought that the parental right should be retained or at least expressed doubts about the wisdom and practicability of abolition. A recurring concern was that abolition would be unenforceable. The law would be widely disregarded and would fall into disrepute. Some legal respondents suggested, however, that reform was necessary. The Association of Reporters to Children's Panels thought that, at the very least, clarification of the scope of reasonable chastisement was required. The Scottish Child Law Centre, in a submission which dealt one by one with the various arguments for retention of the parental right, recommended abolition of the parental right to administer corporal punishment. They considered that this would help to shape public attitudes. They too thought that there was some confusion in the public mind, pointing out that the decision in one case, ¹⁶ in which it was held that a mother was not guilty of assault when she had punished her 9 year old daughter with a belt, had been mediated to the public through banner headlines proclaiming "IT'S OK TO BELT YOUR KIDS". The Centre advocated the repeal of section 12(7) of the Children and Young Persons (Scotland) Act 1937 and a clear prohibition of corporal punishment, even if it did not entail a criminal penalty. The Children's Legal Centre (based in London) also supported abolition for civil law purposes, but not criminalisation. They too criticised the arguments for retention. On the argument that the existing case law set a commonsense standard of reasonableness they commented that

"Any examination of the relevant cases will show that standards and values vary so wildly that no rule of thumb definition could be extracted . . . ".

Citizens Advice Scotland strongly supported abolition of all corporal punishment. They thought that children should be considered as people and citizens in their own right.

2.78 We received a particularly cogent submission from Professor Michael Freeman, of the Faculty of Laws, University College, London. He argued that if assault was wrong, the age of the person assaulted and his or her relationship to the assaulter could not excuse or mitigate the offence. He suggested that if the law did not presently allow the hitting of children and a proposal were to be presented to allow parents to do so it would be objected to on moral grounds. He said that opinions had already shifted greatly on this issue in one generation.

"Most of my contemporaries were hit with implements by their parents but very few would contemplate doing the same.

The right to chastise children might, like the right to chastise a wife, fall into disrepute and obsolescence but it would be better to declare it wrong (and unlawful) now. The present law was, in any event, so imprecise and uncertain in its application as to be unjust parents (as well as children). Moreover much child abuse was corporal punishment gone wrong. Professor Freeman quoted an American study which had concluded that well over half of all instances of child abuse appeared to have developed out of disciplinary action taken by the parent. He then reviewed the evidence (which we have already mentioned in summarising the responses of psychologists to our discussion paper) on the relative ineffectiveness of corporal punishment.

"Its very failure tends to lead to more chastisement and to the application of more force and if this fails yet more."

2.79 Other academic legal commentators also supported abolition. Jonathan Montgomery of the Faculty of Law of the University of Southampton regretted that the English Children Act had left the content of parental responsibility and rights to the common law. He thought that there had to be clear guidance and that in the case of corporal punishment the reasonableness test was too imprecise. The limits could only be established by court action. He suggested that outright prohibition was the only way of giving clear guidance. Elaine Sutherland of the Department of Private Law at the University of Glasgow also favoured abolition. She thought it was highly anomalous that children alone should be exposed to corporal punishment.

"The reasons why children are singled out for this form of treatment probably lie in our economic, social and religious past and have no validity in a society which acknowledges children as people with rights. "

Andrew Bainham of the School of Law, University of East Anglia suggested that corporal punishment should be ignored in legislation.

"While 1 think it might be unrealistic to outlaw it in legislation 1 do not approve of its positive statutory endorsement.

We read this as a suggestion that section 12(7) of the 1937 Act should be repealed. Professor Bissett-Johngon of the Department of Law, University of Dundee did not favour the complete outlawing of corporal punishment but did think that it might be possible for the law to be more precise about when chastisement became unreasonable.

2.80 Views of churches and religious bodies. The Free Presbyterian Church of Scotland was in favour of retaining the parental right of corporal punishment. They said that

"the Scriptures concur that corporal punishment is a valid form of parental discipline when used at the correct time, with due restraint. "

They claimed that to remove the defence of reasonable chastisement from parents and others was

"certain to leave a legacy of ill-disciplined young people .

The Glasgow Presbytery of the Free Church of Scotland also favoured retention. They argued that smacking of children in the ordinary course of discipline was very different from child abuse; that any restriction would be impossible to enforce; that a major section of society would be criminalised, including "many Christian parents who hold it their duty under God to bring up their children making responsible use of corporal punishment"; and that a change in the law would remove some of the sanctions that parents might have recourse to in order to correct the behaviour of their children. CARE (Christian Action Research and Education) in Scotland also favoured retention for essentially the same reasons. They said

"We support the limited use of physical punishment in a context of love and affirmation of the individual child." (Emphasis in original).

We did not receive comments from any other major churches or religious bodies, although several individual respondents referred to what they claimed was scriptural backing for the use of corporal punishment.

2.81 Views of bodies concerned with social work. The Convention of Scottish Local Authorities (COSLA) did not take a formal view on retention or abolition of the parental right but considered that there should be no corporal punishment of children by non-parents.

"Most social work authorities incorporate within their own operational procedures clear statements excluding the use of physical chastisement of children in public care and increasingly this approach is being extended in guidance to child minders. It is therefore recommended that a clear national lead should be given for all children who are being looked after by a person or agency other than their own parent, regardless of whether they are in public care, and that lead should exclude the use of physical chastisement."

Grampian Regional Council's Department of Social Work favoured abolition of the parental right. So did the National Association of Social Workers in Education.

"As Social Workers we constantly see children who are suffering at the hands of their parents. It is very difficult to work with parents to get them to desist from hitting their children when they can assert that they have the right. It becomes a matter of degree which is open to debate and personal interpretation. "

The Association referred to the common experience of punishment escalating in severity when what was felt to be reasonable punishment failed to alter the child's behaviour.

2.82 Views of other societies and agencies. The British Agencies for Adoption and Fostering did not find the existing case law sufficiently clear about what was a "reasonable" level of chastisement.

"The Sheriffs and Judges hold different views about this and the public are consequently confused."

The general view of most BAAF members was in favour of abolition of corporal punishment of children but they saw difficulty in finding an appropriate strategy to achieve this end. Childwatch recommended abolition and made the point that the line between smacking and physical abuse had never been more fragile. The National Childminding Association also favoured abolition. They mentioned that a resolution to ban physical punishment of minded children had been passed at a recent annual general meeting of the Association by over 4000 votes to 8.

2.83 The Royal Scottish Society for the Prevention of Cruelty to Children (RSSPCC) gave a qualified response. While not approving of the use of corporal punishment as a means of child discipline, they thought that an abrupt abolition would cause great anxiety for parents and could be counter-productive, with the focus solely on the legal implications rather than on the promotion of the best parent and child relationships. They did not therefore favour making all corporal punishment of children a criminal offence but they did urge the repeal of section 12(7) of the Children and Young Persons (Scotland) Act 1937, which they regarded as a harmful anachronism. The RSSPCC, had held a conference and seminar on the issue and had issued a questionnaire to experienced staff members which elicited 44 completed responses.

"What is apparent from the questionnaire is that in their work fieldwork staff frequently and regularly come across children who are physically punished. From experience staff know that cases of child abuse often start as physical punishment and escalate. And questionnaire results indicate that in a significant number of cases carried by staff in the last year where children are known to be physically punished, staff have had concerns that this might develop into abuse. It is clear that a significant amount of fieldwork staff time in the RSSPCC concerns child management, i. e. working with parents to effect changes in child rearing practice, diverting them away from, and suggesting alternatives to, hitting children or otherwise treating them in humiliating or degrading ways.

Almost three quarters of the respondents to the staff questionnaire thought that the RSSPCC should openly adopt a policy that corporal punishment was wrong. A slight majority, however, expressed concern that if physical punishment of children by parents were banned, families who practised physical punishment would become less open with staff members about issues relating to child care. There was an almost unanimous view that the RSSPCC should be at the forefront of an educational campaign to help parents to look at alternative ways to discipline children. The RSSPCC recognised that the responses related to families who were experiencing some degree of difficulty and took this into account in drawing up their final, qualified, comments to us.

2.84 We received a very helpful submission, and supporting literature, from EPOCH (End Physical Punishment of Children) which has campaigned vigorously since 1989 to protect children and young people in the United Kingdom from physical punishment and other humiliating and degrading treatment. EPOCH pointed out the highly anomalous nature in our society, which generally condemns violence and bullying, of the parental right to use physical punishment.

"[Physical punishment of children now remains the only lawful inter-personal violence in the family home. Over the last century society has accepted a considerable degree of intrusion by the law into the home to deter or prevent all other forms of inter-personal violence.

They emphasised the point of principle-that children have a right to equal protection of their physical integrity and also other connected justifications for abolishing the parental right, namely

to reduce child abuse;

to reduce other forms of inter-personal violence by removing the current parental modelling of violent ways of resolving conflicts;

to reduce 'accidental injuries' to children arising from reasonable physical punishment; to fulfil international commitments.

EPOCH answered the various arguments for retaining the parental right which we had set out (along with arguments the other way) in the discussion paper. On the argument that, if there is no danger of lasting harm, the State ought not to intervene they observed that the State was under an obligation to protect the physical integrity of all its citizens and that the European Commission on Human Rights had declared inadmissible an application by a group of Swedish parents alleging that the Swedish law of 1979 breached their right to privacy and family life.¹⁷ They observed also that there was ample evidence that

"current acceptance of physical punishment does carry with it the danger of lasting harm".

On the argument that the excesses of some parents were not a reason for treating the remainder as criminals if they so much as slap a child on the hand they pointed out that this ignored the point of principle of the child's right and that, in those countries which had abolished the parental right, it seemed that in practice parents had not been prosecuted. In any event, as will be seen later, EPOCH was not advocating a change in the criminal law. On the argument that physical punishment might be necessary to control the behaviour of children who are too young to be reasoned with, they accepted the need for physical intervention ("grabbing the child running towards the road") but not the need for smacking. There were other, more positive, ways of encouraging good behaviour. On the argument that existing case law provided a safeguard against abuse and a flexible standard capable of changing as knowledge and perceptions changed, they argued that the existing definition was subjective and that the parenting public could not be expected to be "finely tuned" to the detail of judicial decisions on such matters. There was already enough relevant knowledge to justify abolition. On the argument that a law abolishing the parental right would be broken on a very wide scale and would be unenforceable, they commented that all legislation on behaviour within the family was difficult to enforce but that that was not a reason for not having it. Even laws which were difficult to enforce could influence behaviour.

"The evidence from the other European countries which have banned physical punishment is that such reforms do have a dramatic effect on attitudes and practice."

On the argument that outlawing all physical punishment would not stop those parents who really are doing their children harm and might prevent potential abusers from seeking help before it was too late, EPOCH referred to the danger of parents using escalating levels of force towards children who refuse to modify their behaviour. They referred to evidence that many cases of serious abuse started as "ordinary" punishment. They did not accept that potential abusers would seek help later.

"On the contrary, as there will be an earlier awareness that physical punishment is no longer regarded as normal or acceptable, they may well seek help earlier. An acknowledgement in the law that no physical punishment is acceptable would enable health visitors and child protection workers to promote alternatives from the beginning of their relationship with parents. Many have told us that the current situation inhibits them from actively discouraging physical punishment in its early stages, rendering any discussion of the issue a matter of their personal opinion. In any case this argument would not be used in any other context. No-one would support repealing the legal framework intended to protect women from male violence because of the possibility that perpetrators will not seek help. ".

EPOCH were not impressed either by the fact that recent Parliamentary debates in relation to the law of England and Wales had suggested that there was not majority support for reform. In the case of many social reforms majority support followed reform. There was evidence that this had been the case in some of the countries which had banned physical punishment. In any event there was reason to believe that public opinion on this issue was changing. More than 30 major child welfare and professional groups had considered the issue and supported EPOCH's campaign. A Gallup Poll commissioned by EPOCH in late 1989 found that, although 75% of the sample "believed in" physical punishment, this reduced to 59% of those aged 16-24. The poll also found that over 90% of respondents agreed with the statements that "Parents should never smack babies under a year old" and that "Parents should never hit their children with belts, sticks, slippers or other implements". The legal reform which EPOCH recommended was

(a) the repeal of section 12(7) of the Children and Young Persons (Scotland) Act 1937, and

(b) the provision of a remedy in civil law for children aggrieved by physical punishment.

They did not recommend criminalising parents who used moderate and reasonable corporal punishment of a type permitted by the present law. There were pragmatic and, practical reasons for this. To criminalise "ordinary" physical punishment would provoke much unnecessary opposition. Prosecution of parents would be likely to affect children adversely. The idea of having only a civil sanction followed the example of the abolition of corporal punishment in state schools by section 48 of the Education (No. 2) Act 1986. EPOCH also suggested that any reform should apply to non-parents having control of children and should protect all children in all settings.

2.85 A number of other organisations submitted comments supporting abolition of corporal punishment of children, sometimes only for civil law purposes.¹⁸ Many of these organisations drew directly on the experience of people professionally involved with children. A few organisations (other than ones already mentioned) favoured retention of the parental right ¹⁹ or, after full discussion, were unable to reach agreement. ²⁰

2.86 Views of individual respondents. Most of the individual members of the public who wrote to us favoured retention of the parental right to administer reasonable corporal punishment. Common arguments were

(a) a law abolishing the parental right could not be enforced;

(b) careful administration of ordinary corporal punishment did not do a child any harm;

(c) abolition would infringe a parent's rights under the European Convention on Human Rights;

(d) corporal punishment of children was approved of by the Bible;

(e) abolition would undermine family life.

Many of those favouring retention made it clear that they thought there was a clear difference between physical abuse and ordinary physical punishment by a loving parent.

2.87 Assessment of arguments. The question with which we are faced is a difficult question of policy. We do not believe that there is any short cut to an answer based on children's rights. Children's rights (for example, to liberty and freedom of movement) can, within certain limits, be curtailed by reference to the rights and duties of parents which in turn exist primarily for the protection and proper development of the children. A parent can lawfully confine his or her small child in a playpen in circumstances in which one private citizen could not lawfully confine another adult in a wooden cage. Recognition that children are individuals with certain fundamental rights does not necessarily mean that they are individuals who must have precisely the same rights in relation to those who are responsible for their care, protection and proper upbringing as one adult with full legal capacity has in relation to another. This is not to deny the force of the argument that, as a matter of policy, a child's interest in not being hit by others should be taken fully into account and given the fullest respect.

2.88 We do not believe either that there is any short cut to an answer based on parental rights. Parental rights are not absolute. They are subject to regulation by the state, which already sets limits on the type of punishment which can be administered. The question at issue is simply whether these limits ought to be adjusted. This is not to deny the force of the argument that the state should be reluctant to intervene unnecessarily in the way parents bring up their children.

2.89 International obligations do not seem to us to provide a ready made answer. Like the laws of individual countries they have to balance children's rights against parental rights and responsibilities. The European Convention for the Protection of Human Rights and Fundamental Freedoms provides in article 3 that no-one shall be subjected to torture or inhuman or degrading treatment or punishment ²¹ but it seems most unlikely that an ordinary smack by a loving parent would come into that category. ²² Some individual respondents, as we have seen, claimed that the outlawing of corporal punishment by parents would violate a parent's rights under the Convention. This seems unlikely. Resort to the Convention by a small group of Swedish parents who objected to the abolition of their right to use corporal punishment was unsuccessful. The European Commission on Human Rights held their application inadmissible. ²³ Respect for "private and family life" under article 8 does not require toleration of everything that may happen within a family. Some of our respondents referred to article 2 of Protocol 1 which says that

"No person shall be denied the right to education. In exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of parents to. ensure such education and teaching in accordance with their own religious and philosophical convictions."

This article does not seem to us to be relevant to family law reform. It relates to education and teaching. Even if it were relevant we do not think that it would give parents a licence to indulge in any practices they wished in relation to their children on the ground that those practices were in accordance with their own religious and philosophical convictions. The United Nations Convention on the Rights of the Child (which has now been ratified by the United Kingdom) obliges states who are parties to it to

"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 treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or 'any other person who has care of the child. ²⁴

This is a valuable and important provision, to which a number of our respondents referred. However, it is by no means clear that an ordinary smack, which causes no injury, would come within the category of violence, abuse or ²⁵ maltreatment. Certainly, many of the people who wrote to us would hotly deny that this was so. The question of when physical contact, even physical contact intended to cause temporary pain, becomes physical violence is, in our view, a question of degree, just as is the question of when words, even words intended to cause temporary unhappiness, become mental violence. The Convention does not, it seems to us, outlaw an ordinary smack any more than it outlaws an ordinary scolding. In any event a state's obligation under the Convention is only to take all "appropriate" legislative and other measures. ²⁶ That introduces a margin for taking into account such questions as the likely effectiveness or consequences of any particular measure. A state might well conclude, for example, that to make all smacking a criminal offence would not be an "appropriate" measure. We referred in the discussion paper to the recommendation on the corporal punishment of children made in 1985 by the Committee of Ministers of the Council of Europe. Some of our respondents suggested that abolition was necessary in order to comply with this recommendation. We do not believe that this is so. The recommendation was only that member states should

"review their legislation on the power to punish children in order to limit or indeed prohibit corporal punishment, even if violation of such a prohibition does not necessarily entail a, criminal penalty" ²⁷

This falls well short of a firm recommendation that corporal punishment should be abolished.

2.90 So far as arguments of fact and expediency are concerned, we have not been provided with any reliable evidence that children suffer significant harm from being subjected to the occasional carefully controlled smack in the context of a good parent and child relationship. We refer to the comments by Professor Schaffer which we have summarised above. ²⁸ Severe or regular beatings, beltings or canings would be another matter, even if within the limits of the present law. We refer to the comments by Dr Leach and Dr Rowe, also summarised above, ²⁹ on the psychological harm this type of upbringing can cause. There is a good deal of evidence that corporal punishment, of the type permitted by the law, is ineffective as a method of modifying behaviour and that other methods are more effective. This is an answer to those who argue that retention is necessary or that abolition would undermine family life and destroy all discipline but it is not in itself, in our view. a sufficient argument for abolition. Our concern is not with what is the best or most effective parenting practice, but with whether a particular practice is so harmful or unacceptable that it ought to be made unlawful, given that the state quite properly allows parents a very wide margin of freedom and discretion in the way in which they bring up their children. We accept, and regard as important, the arguments to the effect that physical punishments tend to escalate in severity, that parents using physical force may inadvertently cause damage, and that much abuse starts as ordinary punishment. However these arguments do not necessarily, in our view, lead to the conclusion that all corporal punishment must be made unlawful. They do suggest that the line between the permissible and the unlawful should, at the very least, be drawn as clearly as possible, and at a point which provides a margin of protection against inadvertent overstepping of the limit. We do not accept the argument that the only way of drawing a clear line between lawful and unlawful punishment is to abolish all corporal punishment. We accept that children tend to model their behaviour on that of their parents and that it is not desirable to encourage young people to resort to violent ways of resolving conflicts. Again, however, we sympathise with those who believe that loving parents who occasionally resort to a careful smack are not necessarily providing violent role models for their children.

2.91 A few of those who were in favour of retaining the parental right of corporal punishment claimed that the abolition of corporal punishment in state schools had led to widespread indiscipline and disruption. Such research evidence as we have been able to assess does not bear this out. Discipline problems were present before corporal punishment was abolished. Indeed

"behaviour tended to be worse in schools with a high level of corporal punishment (which might mean more punishment leads to more rebellion, or more rebellion leads to more punishment). Certainly. it seems that schools with strict punitive strategies [did] not avert delinquency. ³⁰

Since corporal punishment in state schools was abolished, schools have developed a variety of strategies and sanctions to cope with discipline problems. ³¹ Research done in Scotland, at a time when some schools had voluntarily abolished corporal punishment and others had not, found that

"irrespective of whether a school employed corporal punishment, there was a distinct gap between the best and the worst classroom climates. In the schools which had given up corporal punishment wholly or substantially. teaching and learning went on as elsewhere. Standards of behaviour were not generally giving more cause for concern to teachers. parents or pupils than in other schools. Nor did the teacher-observers find the behaviour of pupils in the class rooms detectably different from elsewhere." ³²

None of the schools which had abandoned, or moved towards abandoning, corporal punishment had considered reintroducing it. The majority opinion among staff and pupils was that standards of behaviour were no worse since abolition or reduction of corporal punishment.

2.92 The arguments in favour of abolition are strongest in relation to punishment at the severe end of what may be permissible under the present law. In relation to the violent parent who often lacks self-control, who punishes his or her child frequently, severely and erratically, who responds to criticism by friends and relatives by saying "I have the right to do this. You mind your own business", who is eventually reported to the police by concerned neighbours, and who escapes prosecution for child abuse only because the local procurator fiscal believes that there would be a successful defence of reasonable parental chastisement in relation to any incidents which could be proved, it is easy to see the force in the arguments of the abolitionists that the child would be better protected from danger if the parental right of reasonable chastisement were removed completely. Similarly, in relation to the self-controlled but strict parent, who regards it as a parental duty not to spare the rod, and who enforces very demanding standards of conduct by frequent canings, which are reasonable and moderate in the parent's view (and, let us suppose, would also be so regarded by some judges) but which in fact have placed the child in a state of suppressed fear and anxiety, it is easy to see the force in the arguments of the abolitionists that the child's rights as a person are being overlooked or undervalued; that the child is likely to be harmed; and that an inappropriate role model is being provided. On the other hand, in relation to the firm but affectionate parent who sets reasonable standards and who only occasionally resorts to a safe smack to emphasise the seriousness of his or her displeasure, it is easy to see the force in the arguments of the retentionists that this type of conduct cannot reasonably be categorised as violence, abuse or maltreatment; that a parent could legitimately take the view that it is in the interests of the child and of those liable to be affected by anti-social behaviour by the child; that the child will not be harmed; and that it would be unduly interventionist, and calculated to bring the law into disrepute, to make such conduct unlawful.

2.93 Assessment of options. At the most general level we have to choose between recommending some change or no change in the present law. We have been impressed by the level of support, particularly from organisations concerned with child care or child welfare, for some change. We have accepted that there is force in some of the arguments for change, particularly in relation to corporal punishment at the severe end of what may be permitted by the present law. We do not therefore recommend that the law should remain unaltered.

2.94 So far as the direction of change is concerned we have no doubt that, if there is to be any change, it should be in the direction of reducing the level of physical force which can lawfully be used in the punishment of children. No-one argued that the existing law unduly curtailed the powers of parents, even although what is permitted today probably falls short of what was regarded as normal and desirable in earlier times. ³³

2.95 The most radical option would be to make all corporal punishment unlawful, for both civil and criminal law purposes. A safe parental smack on the bottom for disciplinary purposes would become, legally, an assault. We do not recommend this option. We think that it would be going too far to criminalise ordinary safe smacks of the type occasionally resorted to by many thousands of normal affectionate parents. It is significant that some of the strongest advocates of reform do not advocate that smacking should be a criminal offence. ³⁴ Outright abolition of all corporal punishment, for both civil and criminal law purposes, would not be in accord with the overall results of our consultation. It would probably go beyond what has actually been done in Sweden, given that in Sweden it seems that not all trivial smacks would legally amount to criminal assault. ³⁵

2.96 An option which was strongly urged by some respondents was that all corporal punishment of children by parents should be made unlawful for civil law purposes but not for criminal law purposes. A child subjected to corporal punishment of a type permitted by the existing law could sue his or her parent for damages for assault, but the parent could not be prosecuted. Even conduct at the extreme end of what is permitted by the present law, involving perhaps the use of belts, sticks or other implements, would not be made a criminal offence. Those supporting this option pointed out that this technique had been used successfully in effecting the abolition of corporal punishment in state schools. Section 48 of the Education (No.2) Act 1986 adds the following provisions to the Education (Scotland) Act 1980.

We do not recommend this option. It would convey a confusing message to parents who. would be told, in effect, that the lawfulness of smacking, belting or caning their children depended on what court they came before. If they came before a criminal court they would still have the defence of reasonable chastisement, as before. If their child sued them in a civil court, which would be extremely unlikely, they would not. This solution would give the quite false impression that the state is not greatly interested in this matter and that it is simply a private matter between parent and child. The whole reason for setting a legal limit is that the state is interested in protecting children. If the state is sufficiently interested to intervene and set a limit it should not, in our view, simply leave it to beaten children to enforce the limit by taking civil proceedings against their parents. It would not be acceptable to say that moderate corporal punishment of a wife by her husband was a civil wrong but not a criminal offence. The Education Act model is not persuasive. First, it seems a bad model on its merits. For a teacher in a state school to belt a child nowadays, contrary to everybody's expectations and the accepted norms of classroom conduct, surely ought to be a criminal offence. Secondly, the fact that this solution worked in the education context does not mean that it would work in the parental context. A parent can initiate civil proceedings against a teacher on behalf of a young child. The child can be protected from severe retaliation. Damages will benefit the child without adversely affecting the parent. There are effective disciplinary sanctions. A belting teacher would probably lose his or her job-certainly if the conduct persisted. The position in the family, as between parent and child, is very different in all these respects.

2.97 Some commentators suggested that, at the very least, there should be an attempt to clarify the limits beyond which parents cannot go in exercising their right of reasonable chastisement. This is an option which we find attractive. It is a clear approach which addresses the real question-"What are the acceptable limits? "-without trying to fudge the issue. It could do a lot of good if it disabused some parents of any views they might have that floggings and beatings are acceptable. It could be used as a basis for education campaigns (such as that planned by the RSSPCC) which, of course, could go far beyond a simple explanation of the new law and could stress the positive alternatives to physical punishment. It seemed to us, on reviewing the response to our discussion paper as a whole, that there was more common ground than might be supposed. Many of those who favoured retention of the parental right talked in terms of ordinary smacking in the context of an affectionate relationship. Many of them stressed that they did not support the abuse or maltreatment of children. On the other hand, as we have seen, many of those who favoured comprehensive reform drew the line at criminalising the many thousands of good parents who resort to the occasional safe smack. In short, there was universal opposition to, and indeed revulsion at, the idea that parents should be permitted to subject their children to abuse or maltreatment and a general, but not universal, reluctance to categorise an ordinary safe disciplinary smack as abuse or maltreatment, at least for purposes of the criminal law.

2.98 It seemed to us, on the basis of the comments which we had received, that there would be likely to be general agreement that a parent should not, in the purported exercise of parental rights, be allowed to cane, belt, whip or flog a child or hit the child with a shoe, slipper, wet cloth, piece of rope, wooden spoon, fish slice or any of the other objects which we know some parents use as instruments of punishment. It also seemed to us that almost everybody would agree that a parent should not be allowed to strike a child in a way which actually injured the child (by breaking an arm, for example, or damaging an internal organ, or lacerating the skin) or involved a risk of injury to the child (as a heavy blow to the head, face or abdomen would do, even if by good fortune it did not cause injury in a particular instance). It also seemed to us that almost everyone would agree that a parent should not be able to strike a child in such a way as to cause, or risk causing, prolonged pain. The essence of the ordinary safe parental smack, which many of our respondents did not wish to criminalise, was, it seemed to us, that it caused no injury and only transient pain. We therefore concluded that a possible way of increasing the protection of children from physical force would be to remove the defence of reasonable chastisement in the exercise of parental rights if the conduct complained of involved striking the child

(a) with a stick, belt or other object, or

(b) in such a way as to cause, or to risk causing, injury, or

(c) in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time.

2.99 A provision on the above lines would meet the desire of a number of consultees for a clarification of the scope of the parental right of punishment. It would draw the line at a point which could be easily explained and understood. "No implement. No injury or risk of injury. No lasting pain or discomfort or risk of lasting pain or discomfort." It would outlaw the worst practices while not criminalising the ordinary safe smack. It would be enforceable through criminal prosecutions for assault or child abuse if need be, and also through civil proceedings, although these would probably be rare. It would not leave it to the beaten child to sue his or her parent. It would provide increased protection for children without interfering unduly with parental rights.

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: 1055)

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 recommend action. The existing position, whereby corporal punishment is effectively outlawed in some schools but not. or not entirely, in others, ³⁶ 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. ³⁷ 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. ³⁸ 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.

2.105 Recommendation. We recommend that

11. (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 to 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 or 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 Persons (Scotland) Act 1937 should be amended by deleting the references to assault, which is adequately covered by the common law.

(d) Section 12(7) of the Children and Young Persons (Scotland) Act 1937 should be repealed.

(Draft Bill, clause 4 and Schedule 2)

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