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Physical Punishment or Assaulting a Child? Where Do You Stand?

Blurred lines separate justifiable physical punishment of a child in their development, and assaulting a child. The Children (Equal Protection from Assault) (Scotland) Bill, introduced to the Scottish Parliament by John Finnie MSP, aims to stop parents ‘smacking’ their children so that there will be no doubt where the line is to be drawn. Mr Finnie explains in his consultation that in 2017, “we still afford children less protection from assault than adults.” How is this going to affect parental rights and parents’ relations with their children?

Under the Children (Scotland) Act 1995, parents are given the responsibility to safeguard their child’s health, development and welfare, and to provide appropriate direction and guidance. To exercise these responsibilities, the 1995 Act allows parents particular rights such as: the right to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing.
Up until this point, the Scottish common law approach has been to protect parents who use physical punishment for parental guidance from criminal liability through the principle of “reasonable chastisement”. Reasonableness is to be judged having regard to: the nature of the punishment inflicted, the effect on the child, and the age of the child.

However, the question raised by the Bill is whether physical punishment should be completely banned. The Bill favours child protection over parental rights in accordance with a consistent societal change over the past few decades – many members of our society will remember the use of physical punishment not just in homes, but in schools and other contexts, to discipline children. However, those times are in the past as has been confirmed after the European Court of Human Rights found in 1998, in the case of A v the UK, that a child’s human rights had been breached when their stepfather beat the child with a cane as a punishment. Because of this decision, laws throughout the whole of the UK changed, but the UK remain one of six EU countries to have not fully banned the physical punishment of children.
The Scottish approach currently, matching to the common law, is to allow “justifiable assault” under the Criminal Justice (Scotland) Act 2003. When physical punishment is used on a child in the exercise of a parental right or a right derived from being in charge of the child, a court must consider the nature, reason, circumstance, duration and frequency of the assault alongside the physical and/or mental effects, age and characteristics of the child.

The new Bill suggests removing discretion from the court to protect children from all types of assault. The Bill may be revised and amended, or it may fall before it is passed into law. However, for now, the question still remains for parliament on what the correct approach should be for the correct upbringing of Scotland’s children.

This blog entry was written by Andrew Harding, LLB (Hons), currently studying for the Diploma in Professional Legal Practice

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