Hansard

The Executive has sought this debate today so that members of the Scottish Parliament may have an opportunity to express their views about the Executive's proposals for modernising the law on the physical punishment of children. Our proposals are set out in the consultation paper "The Physical Punishment of Children in Scotland", copies of which were made available to the Scottish Parliament information centre when it was issued on 8 February.

Since I announced the consultation, there has been extensive commentary in the media on the Executive's proposals. We now want to give Parliament an opportunity to comment. I welcome that, since our aim in consulting widely on the issue is to determine how we can provide better protection for the children of Scotland. I hope that that is an aim that members present will support today.

I want to provide some historical background on how we arrived at the consultation paper. The consultation that we are now undertaking is the latest step in a process of providing better protection for our children. Attitudes and the law change and develop over time.

An early step to provide protection was the enactment of the Children and Young Persons (Scotland) Act 1937. One of the relevant provisions, section 12, is set out at the end of the consultation paper. In its time, the 1937 act was a considerable advance in protecting children from ill-treatment, neglect or abandonment. It resulted from a change in attitude of people at that time. Society could no longer countenance the harsh treatment that was sometimes meted out to children and sought to remedy the position through legislation.

However, the 1937 act also recognised, in section 12(7), a parent's right to administer punishment to his or her child. Times and attitudes move on, and we need to consider whether the law should be changed to reflect that.

The most recent examination of the issue was carried out by the Scottish Law Commission. In its "Report on Family Law" of 1992, the commission recommended that in any proceedings, whether criminal or civil, there should be no defence in cases of corporal punishment where the parents used a stick, belt or other object. That recommendation was debated, but rejected, during the passage of the Children (Scotland) Act 1995—Lord James Douglas-Hamilton and I wear the battle scars of that debate—and remains unimplemented.

More recently, there has been strong public support in Scotland for the abolition of corporal punishment by childminders, day care providers and providers of non-publicly funded pre-school education. There has also been the English case of A v the United Kingdom in the European Court of Human Rights. That case concerned a child who had been severely beaten by his stepfather. The stepfather was acquitted by an English court, but the European Court of Human Rights found that the UK was responsible for failing to take measures to protect the child against punishment whose severity breached article 3 of the European convention on human rights. The court said that although the defence only extended to "reasonable chastisement", the law had failed to protect the child from treatment of sufficient severity to fall within article 3 of the ECHR. The case highlighted the need to examine the law in England and Wales, and the United Kingdom Government agreed to do so. That gave us the opportunity to re-examine the law in Scotland.

From my brief outline of the more recent history, members will see that the views of society change over time. That was certainly the experience in those Scandinavian countries that have moved to abolishing fully the physical punishment of children. The driving force there—which, I would argue, applies to our situation—was the attitude of society. When abolition came about in those countries, it did so in time and in tune with public opinion. It came with little fuss and with a ready acceptance.

Part 3 of our consultation paper provides a summary of the law in Scotland. I will not repeat that here, except to emphasise that the law recognises a parent's right to administer moderate physical punishment to his or her child and that, in cases that reach court, it must be proved that the punishment went beyond "reasonable chastisement" before a conviction can be obtained or damages awarded.

In determining whether any punishment is excessive, a court would look at all the circumstances of the case, including the age, sex and any known disabilities or weakness of the child. The flexibility that is offered to the court is wide. That flexibility has prompted the Executive to examine the need for change in the law. Although the breadth of the law allows the courts to determine each case against its particular circumstances, it is argued that the law does not indicate clearly enough what would be considered to be "reasonable chastisement". That is one reason why we are consulting.

As part 5 of the consultation paper sets out, we propose to define in statute what is meant by "reasonable chastisement". I will make the Executive's position clear on whether all physical punishment of children should be banned. The Scottish Executive feels that it would be unacceptable to outlaw all physical punishment of a child by a parent. However, we are specifically asking that question so that the issue is exposed for debate.

Surveys have shown that the vast majority of people in Scotland support the right of parents to smack their children. We want to amend the law to protect children from punishment that is deemed to be harsh, degrading and inappropriate in a decent society. I strongly suspect that the vast majority of people in Scotland will also support that wish.

We want to encourage good parenting, which is vital, although I know only too well that it can be a demanding job. We must recognise the rights of parents to exercise their parental responsibilities and to bring up children safely, as they think best, without undue interference from the state, but we must also protect the rights of children and encourage non-physical methods of discipline.

It is not the role of the state, and certainly not the wish of the Scottish Executive, to interfere unnecessarily in family life, but it is the Executive's wish to ensure that the law provides adequate protection from physical harm for our children and that the law is clear for the judiciary, legal practitioners and, above all, parents.

In practice, at present, where it is held that punishment was inhuman or degrading, a trial judge is invited by the prosecutor to reject any argument that the punishment had been "reasonable chastisement". However, to ensure that Scottish law conforms to article 3 of the European convention on human rights, we propose as a minimum that the law should make it clear that physical punishment of children which constitutes "inhuman or degrading treatment" can never be considered "reasonable chastisement".

We further propose that the law should explicitly set out that, in considering whether 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 and frequency; its physical and mental effects; and, in some instances, the sex, age and state of health of the victim.

It would be possible to make other changes to the law in pursuit of that objective of ensuring that Scottish law conforms to article 3 of the European convention on human rights. Therefore, we are also consulting on whether it would be possible to add to or elaborate on the factors that I have just given. For example, the court might also consider the reasons for the punishment, when it was administered, the persons involved and the vulnerability of the child.

If it were thought useful, it could be possible to specify forms of punishment that could never be deemed to be reasonable, such as blows to the head or shaking. Another possibility, which was suggested by the Scottish Law Commission, is to prohibit using implements. Those and other options are outlined in the consultation paper.

We are taking this opportunity to obtain views on who may administer reasonable chastisement. Currently, reasonable chastisement may be administered by those who have parental responsibilities and rights, but also by others who have lawful charge of children, such as relatives, baby-sitters or neighbours who have been given the responsibility of looking after children temporarily.

Following the consultation preceding the Standards in Scotland's Schools etc Bill, we are also asking whether there should be a statutory ban on physical punishment in all early years settings such as in child care centres, by childminders and in non-publicly funded pre-school centres. The physical punishment of children has already been banned in a number of situations, such as in state schools. It has not been possible to deal with most early years settings in the schools bill as they fall outside the scope of education law.

Finally, we are also asking whether parents should continue to be allowed to use reasonable physical punishment towards their children. In asking that, we recognise that there are many who would want to answer the question in the affirmative and many who would want to answer in the negative. The Executive feels that it is important not to leave the question unasked or unanswered.

The amendment lodged by Lyndsay McIntosh appears reasonable on the surface. In our consultation paper, the Executive asks whether parents should continue to be allowed to use reasonable physical punishment towards their children. In asking that, we admit that the Executive is inclined to the view that it would be unacceptable to outlaw all physical punishment of a child by a parent, as I have indicated.

We believe that that view conforms to what the majority of people in Scotland would support and that clarification is needed to provide better protection for children. The Conservative amendment could be seen as compatible with that. But we also recognise—