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1. See eg McShane v Paton 1922 JC 26; Gray v Hawthorn 1964 JC 69. The teacher's common law right has now been severely restricted by s48A of the Education (Scotland) Act 1980 (inserted by s48 of the Education (No 2) Act 1986).
2. See eg Guest v Annan 1988 SCCR 275; B v Harris 1990 SLT 208; Peebles v MacPhail 1990 SLT 245; Coyle v Lowe 1990 GWD 33-1887; Byrd v Wither 1991 SLT 206. In a case reported in The Scotsman and Glasgow Herald on 27 November 1991 a 55-year-old father who had whipped and caned his son and two daughters from the age of 7 onwards was jailed for four years by Lord Morton of Shuna at the High Court in Dunfermline. Lord Morton told the accused that his violence to the children "went far beyond anything that could have been described as reasonable."
3. John and Elizabeth Newson, Four Year Olds in the Urban Community (1970) and Seven Year Olds in the Home Environment (1976).
4. Sweden (1979), Finland (1984), Denmark (1986), Norway (1987), Austria (1989). See Newell, Children Are People Too (1989).
5. Parl Debs (HQ Standing Committee B, 13 June 1989, cols 549-567.
6. Parl Debs (HL) (1988-89) Vol 503 cols 542-548.
7. Ibid at col 548.
8. Parl Debs (HL) (1988-89) Vol 504 cols 345-352 and Vol 505 cols 407-410.
9. Parl Debs (M) (1988-~9) Vol 503 cols 1443-1453.
10. Haeuser, Assessment of Swedish Reforms: Reducing Violence Towards US Children: Transferring Positive Innovations from Sweden (1988)University of Wisconsin, Milwaukee, School of Social Welfare.
11. Parl Debs (M) Standing Committee B, 13 June 1989, col 555.
12. Education (No 2) Act 1986, s48.
13. Recommendation No 85(4) (1985) para 12. The explanatory memorandum notes (at p14) that "It is the very assumption that corporal punishment of children is legitimate that opens the way to all kinds of excesses and makes the traces or symptoms of such punishment acceptable to third parties".
14. Article 19.
15. Particularly as some submissions were by organisations with hundreds or thousands of members. In some cases the line to be adopted by an organisation had been approved expressly at a general meeting.
16. B v Harris 1990 SLT 208. This case can be contrasted with Peebles v MacPhail 1990 SLT 245 (slapping a 2 year old child on the face, knocking him over, held to be as remote from reasonable chastisement as could possibly be imagined) and the 1991 case noted in the footnote to para 2.67 where a father was jailed for 4 years for whipping and caning his children.
17. Application 8811/79; Seven Individuals v Sweden, May 13, 1982.
18. The Scottish Child and Family Alliance (SCAFA) (civil law sanction only); the Scottish Association of Family Centres; Kidscape, Campaign for Children's Safety; the Scottish Pre-School Play Association (civil law sanction only); the Humanist Society of Scotland (civil law sanction only); the Voluntary Organisations Liaison Council for Under Fives (VOLCUF); Working for Childcare; Edinburgh Association of University Women; Dundee Association of University Women (abolish or restrict); Perth Association of University Women; Scottish Women's Aid (but other changes necessary too); Hamilton Women's Aid.
19. The National Children's Bureau: Scottish Group (but recognised that there were arguments on both sides); the Scottish Convention of Women (but recognised strength of feelings on both sides of argument); the Mother's Union in Scotland; the Business and Professional Women's Club, Inverclyde Branch (but only if "reasonable" can be defined).
20. Glasgow Association of University Women.
"Our group spent much time on the
pros and cons .... As our group included teachers-nursery, primary, secondary
and university-as well as parents and grandparents, much experience was evident,
as was disagreement .... It was agreed that children can be as much harmed psychologically
by sarcasm, verbal harassment, physical confinement and so on, as by physical
punishment."
21. Article 37 of the United Nations Convention on the Rights of the Child also provides that "No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment."
22. In the Tyrer case (25 April 1978) (on judicial birching in the Isle of Man) the European Court of Human Rights noted that judicial corporal punishment "was ... violence having an institutionalised character which was compounded by the aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender". In the Campbell and Cosans case (25 Feb 1982) (on the threat of corporal punishment in Scottish schools) the Court held that there had been no violation of article 3.
23. Decision on admissibility of application 8811/79; Seven Individuals v Sweden May 13, 1982.
24. Article 19(1).
25. Chambers Dictionary defines -violence", in the sense with which we are here concerned, as "excessive, unrestrained, or unjustifiable force". The Shorter Oxford Dictionary refers to "the exercise of physical force so as to inflict injury on or damage to persons or property". it says that a violent action is one "characterised by the doing of harm or injury . . . characterised by the exertion of great physical force or strength ... done or performed with intense or unusual force, and with some degree of rapidity; not gentle or moderate."
26. The obligation under art 19 to take all 44appropriate" measures may be contrasted with the obligation under art 37 to "ensure" that no child is subjected to torture, or other cruel, inhuman or degrading treatment or punishment.
27. Recommendation No 85(4) (1985) para 12.
28. At para 2.76.
29. At paras 2.74 and 2.75.
30. Johnstone and Munn, Discipline in School: A Review of 'Causes' and 'Cures' (Scottish Council for Research in Education. 1987) p39 (footnotes omitted).
31. Discipline in Schools (R9port of the Committee of Enquiry chaired by Lord Elton, HMSO 1989) p63.
32. Cumming, Lowe, Tulips and Wakeling, Making the Change: a study of the process of the abolition of corporal punishment (Scottish Council for Research in Education, 1981) p.3.
33 . The Free Presbyterian Church of Scotland referred us to Proverbs 13 v. 24 ("He that spareth his rod hateth his son") and Hebrews 12 v. 6 ("For whom the Lord loveth he chasteneth, and scourgeth every son whom he receiveth"). They also referred us to a passage in Ephesians 6 vv 2-4, which seems to refer only to the desirability of a Christian upbringing and which comes immediately before a passage urging slaves to obey their masters with fear and trembling.
34. See eg the views of EPOCH, summarised at para 2.84 above.
35. A leaflet published by the Swedish Department of Justice after the abolition of the parental right to administer corporal punishment explained that "Should physical chastisement meted out to a child cause bodily injury or pain which is more than of very temporary duration it is classified as assault and is an offence punishable under the Criminal Code" and that under the new law, as under the old, "trivial offences will remain unpunished, either because they cannot be classified as assault or because an action is not brought.
36. S48A of the Education (Scotland) Act 1980 (inserted by s48 of the Education (No.2) Act 1986) does not apply to teachers in private schools in so far as they inflict punishment on pupils whose fees are not paid out of public. funds. It is worth emphasising again that s12(7) does not confer any defence. It simply refers to an existing common law defence which would, so far as teachers are concerned, be unaffected by our proposals. The teacher's right to administer corporal punishment, in so far as it has survived s48A of the Education (Scotland) Act 1980, is an independent right. It s not a parental right or a delegated parental right. It is, in the words of s48A, "a right exercisable by the member of the staff by virtue of his position as such".
37. Para 2.59 above.
38. See eg Byrd v Wither 1991 SLT 206 (cohabitant). Cf Children and Young Persons (Scotland) Act 1937, s12(7).
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