Background

Children are human beings and as such have the same human rights as anyone else. They are amongst the most vulnerable members of society, it is society’s duty to protect them and their rights. The UK has been a signatory to the European Convention on Human Rights (ECHR) since 1953. The provisions of this convention will become enforceable, under the Human Rights Act 1998, in UK law as from 2 October 2000. These provisions have been enforceable against the actions of the Scottish Executive since the Scotland Act 1998 came into force in summer 1999.

The Human Rights Act gives further effect to the provisions of the ECHR. Article 3 of the ECHR states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." This is an absolute right which cannot be subject to any derogation. The European Court of Human Rights has interpreted this article to include physical punishment of children.

Physical punishment of children can be considered to be inhuman or degrading treatment or punishment and as such may be challenged in Scottish courts after this date. The proposals to allow physical punishment of children provided that it is reasonable open up the legislation to challenge for breach of the ECHR.

The UK is also a signatory to the United Nations Convention on the Rights of the Child (UNCRC). Although this convention is not enforceable in UK courts, the State is obliged to have reference to it and progress on its implementation is monitored at regular intervals.

Article 3 of the UNCRC states that all actions concerning the child should take full account of the best interests of the child. Article 19 provides for the protection of the child from all forms of maltreatment perpetuated by parents or others. Article 37 prohibits, amongst other things, torture, cruel treatment or punishment. These provisions are all relevant with regard to the physical punishment of children.

SHRC does not see that the banning of corporal punishment of children will lead to an increase in the number of prosecutions of parents or the criminalisation of parents punishing their children. It would encourage the Scottish Executive to put in place mechanisms to provide advice and support for parents, and to take steps to assist the change in culture which will be necessary.

Eight European countries have banned corporal punishment of children. The children in these countries appear no more wild or unruly than those in Scotland. There have not been increases in the number of prosecutions against parents for punishing their children. Thus it would appear to be unjustified to retain the physical punishment of children and in particular the defence of reasonable chastisement.

Question 1
Do you agree with the Scottish Executive that parents should continue to be allowed to use reasonable physical punishment for their children?

SHRC does not agree. We object to anyone being allowed to use physical punishment for children. We believe that children should have the same legal protection as adults in relation to assault. The current position does not afford children sufficient protection and potentially breaches a number of other significant legal instruments, notably the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.

The European Court of Human Rights has already found that the UK was in breach of its obligations under the ECHR by allowing corporal punishment in schools and that parental consent to the punishment did not alleviate the State obligation to protect the individuals rights under the ECHR. In Y v. UK a 15 year old school boy at a private school was given 4 strokes of the cane on his bottom through his trousers, resulting in heavy bruising. The caning was administered in private by the Headmaster as soon as the offence was reported. A county court claim of assault was unsuccessful on the basis that the parents had signed a contract permitting caning as a disciplinary punishment and the force used had been reasonable. This was decided out of court by friendly settlement. In Campbell and Cosans v UK it was held that the threat of corporal punishment did not constitute a breach of article 3 although it did raise serious questions about it.

The Court further held in 1998 (A v. UK [1998] EHRLR 82) that the caning of an eight year-old boy by his stepfather was a breach of article 3 and that the defence of reasonable chastisement did not provide adequate protection for the child. The Court held that the State should protect children against such treatment, through effective deterrence.

Retaining the defence of "reasonable chastisement" sends out a message that violence against children is acceptable. This denies children the protection they need, discriminates against them and breaches their human rights. This is not an acceptable situation. There is a zero tolerance campaign with regard to domestic abuse of women yet it is being debated that it could be "reasonable" to tolerate violence towards children.

Question 2
Do you agree with the Scottish Executive Proposals 1 & 2?

Proposal 1: The law should make it clear that physical punishment which constitutes "inhuman and degrading treatment" can never be justified as "reasonable chastisement". No, we do not agree with this proposal. Physical punishment of children can not be deemed to be reasonable and they should be provided with the same protection as adults under the laws on assault.

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 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.

No, we do not agree with this proposal. Physical punishment of a child can not be deemed reasonable in any circumstances. Children should be afforded the same protection as adults under the law on assault. Only an outright ban on the physical punishment of children will afford them the necessary protection. Providing a checklist for the courts will not protect child from harm and is not in their best interests. The European Court of Human Rights has held that "reasonable chastisement" does not provide adequate protection for children thus this defence should not be retained.

Making any kind of distinction between at what age a child can be physically punished or in what way or with / without an implement seriously reduces the possible protection of the child. The defence of "reasonable chastisement" is arbitrary dependent on the judge’s own concepts of "reasonableness". It is difficult to measure the risk to the child, the injury, pain, discomfort, or physical or mental trauma caused by violence against a child therefore is a very difficult judgement to be made by a court, let alone a parent.

Question 3
What, if any, other factors should be considered?

There are NO factors which should be considered and the concept of "reasonable chastisement" should be removed. As stated above the physical punishment of children is an unacceptable practice which is not in the best interests of the child.

Question 4
Are there any forms of physical punishment which should never be capable of being considered "reasonable"? Specifically: Risking injuries by the use of: Blows to the head, shaking, using implements, and striking very young children?

Physical punishment of a child in any form is unacceptable. That it is even considered acceptable to ask if the risk of sustaining such injuries could ever be reasonable is appalling and highlights the need to send a clear message that all forms of violence towards children are inappropriate and unacceptable.

Questions 5
Who should be able to administer "reasonable chastisement"? - Those with parental responsibilities, acting on behalf of parent or with the permission from parents?

NO ONE should be allowed to administer any form of physical punishment to a child. All children should be given the same protection under the law as adults in relation to assault. Physical punishment of children can never be acceptable. Society should not condone in any form an adult using physical punishment on a child, regardless of family ties.

Question 6
Should there be a ban on corporal punishment in child care centres, by childminders and in non-publicly funded pre-school?

Yes there should be a ban on all of the above, but it should be part of a wider complete ban on all forms of physical punishment of children, thus protecting children from physical punishment wherever they are or whatever they are doing.

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