Commissioner welcomes backing for equal protection of children

19 October 2017

The Commissioner has welcomed the news that the Scottish Government and Scottish Labour Party have backed proposals to give children equal protection from assault to adults under Scots law.

But he has been clear that legislative change is the Scottish Government’s obligation under human rights law.

At the moment, Scots law protects adults from all forms of physical violence, but does not grant children the same protection. The Criminal Justice (Scotland) Act 2003 provides a defence of justifiable assault of a child, which can be exercised where it’s claimed a violent act against a child was physical punishment carried out in exercise of a parental right.

Current proposals involve the removal of both this defence and previous laws that provided similar defences.

Removing the defence of justifiable assault wouldn't create a new criminal offence: most forms of physical assault against children are already against the law— this change would make it so that all of them are, giving children in Scotland equal protection to adults.

An untenable position

The Commissioner is clear that the defence of justifiable assault is untenable in human rights terms. In July 2017, he published his opinion on the subject in the journal of the Law Society of Scotland.

Our office has also produced a webpage outlining how physical punishment of children is incompatible with specific international human rights instruments.

Access this webpage here.

The Commissioner’s comments

The Commissioner said:

“In Scotland in 2017, our law allows a parent or carer to assault a child for the purpose of physical punishment, which is untenable in international human rights law. This goes against the basic values that we hold in Scotland in terms of human dignity and respect for children.
“Support for legislative change is growing. In the past few weeks, both the Scottish Government and the Scottish Labour Party have pledged their support for John Finnie’s proposals to amend the law. Across the political spectrum, there is recognition that this is not only an obligation in human rights law and the right thing to do, but it is something we should have done many years ago.
“Scotland has the potential to be the first country in the UK to bring about the legal change necessary to provide children with equal protection from assault. If we pride ourselves on being a progressive country, a country which values children and is committed to offering them the best outcomes in life, then we need to make sure that this legislative change happens at the very earliest opportunity.”