Equal protection

Assaulting a child for the purposes of punishment should always be against the law. Scotland’s current law is untenable in international human rights law terms.

While Scots law protects adults from all forms of physical violence, 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.

The Commissioner supports:

  • the removal of this statutory defence, and
  • the removal of 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.

The Children (Equal Protection from Assault) Bill is currently making its way through the Scottish Parliament. In November 2018, we responded to the Equalities and Human Rights Committee consultation on the Bill, which the Commissioner fully supports.

Read the consultation response.

Equal protection links

Journal of the Law Society of Scotland: Opinion piece

In this article, Commissioner Bruce Adamson gives his legal opinion on the Children (Equal Protection from Assault) (Scotland) Bill: that it provides the Scottish Government with an opportunity to remedy its repeated failure to bring Scotland up to international standards on children’s rights.

Read the article.

Children (Equal Protection from Assault) (Scotland) Bill

The Commissioner's response to the Children (Equal Protection from Assault) (Scotland) Bill, which he fully supports. Assaulting a child for the purpose of punishment is a breach of their human rights and can never be justified, and maintaining the defence of justifiable assault legitimises the use of physical punishment in Scotland. The submission details the international human rights treaties that the current legislation breaches.

Read the consultation response.

Children in Scotland Magazine: A force for change

In this interview, Commissioner Bruce Adamson outlines his stance on equal protection of children under Scots law:

“My position won’t be one of regret. My position is – this needs to change or legal action will be taken.”

Read the article.

Equally Protected? A review of the evidence on the physical punishment of children

This review report around existing evidence on the physical punishment of children was commissioned by ourselves and:

  • NSPCC Scotland,
  • Children 1st, and
  • Barnardo's Scotland.

Read the report.

Equal protection in the UNCRC

The preamble to the United Nations Convention on the Rights of the Child (UNCRC) affirms that – precisely because of their physical and mental immaturity – children need special safeguards, including appropriate legal protection. Several articles reinforce the child’s right to physical integrity and protection of their human dignity, and specific rights that relate to protection from physical assault include:

Article 19

Article 19 requires a state to take all appropriate legislative, administrative, social and educational measures to protect a child from violence carried out by a caregiver. This requirement covers all forms of violence – both physical and mental – and applies to violence carried out by any caregiver, whether they’re a parent, legal guardian or someone else.

Article 37

Article 37 requires that children are protected from torture or other cruel, inhuman or degrading treatment or punishment. In requiring this, it reflects article 3 of the European Convention on Human Rights (ECHR) and other international treaties.

Equal protection and international bodies

The United Nations, the Council of Europe, and the European Union have repeatedly called on Scotland to honour its international human rights commitments to provide children with total protection from assault. However, successive Governments have failed to do this.

The European Court of Human Rights has progressively condemned corporal punishment in a series of judgments against the UK since the 1970s.

Each time, the law has been amended only to meet the minimum requirement of the judgment, rather than to properly respect the rights of children.

It should not require a child to take a case to Strasbourg for the Scottish Government to act.

The UN Committee on the Rights of the Child

The UN Committee on the Rights of the Child is unequivocal— children’s right to protection from violence and to equal protection under the law means that states must enact legislation which prohibits – without exception – all forms of corporal punishment of children in all settings.

In its 2016 Concluding Observations, the Committee urged all areas of the UK – including Scotland – to prohibit corporal punishment as a matter of priority, and to repeal all legal defences of its use. It also urged all areas of the UK to promote both:

  • positive and non-violent forms of child discipline, and
  • respect for children’s right – held equally with adults – to human dignity and physical integrity.

The Universal Periodic Review

The Universal Periodic Review (UPR) is a process set up by the UN Human Rights Council to review the human rights situation in every UN member state. Every five years, each state is assessed by a group of representatives from other states that are also members of the United Nations.

The UK was assessed under the UPR in May 2017, when other UN member states made several recommendations around its rights record. Seven of the recommendations related to physical punishment.

States can either note or support recommendations made through the UPR. In September 2017, the UK chose to note all seven of these recommendations— meaning it made no political commitment to implementing them.

Equal protection as a European norm

Justifiable assault is also a breach of European human rights laws.

In 2004, the Parliamentary Assembly of the Council of Europe ruled that social and legal acceptance of corporal punishment of children must end.

In 2008, the Council of Europe launched a Europe-wide campaign for prohibition of all physical punishment and the promotion of positive, non-violent parenting, with the aim of creating a continent free of corporal punishment.

40 of the Council’s 47 member states have now provided equal protection for children or committed to do so.

And the European Committee of Social Rights has repeatedly found the UK in breach of article 17 of the European Social Charter, which gives all children the right to appropriate social protection.

As outlawing physical punishment is increasingly the norm across Europe, the failure to provide children with equal protection is a breach of the ECHR.

Article 3 of the EHCR

Under article 3 of the EHCR, a minimum level of severity is required for an act to constitute an inhuman or degrading treatment or punishment. The Commissioner thinks that physical punishment under a defence of justifiable assault may exceed this minimum level, even given existing limitations on the defence laid out in the Criminal Justice (Scotland) Act.

Article 8 of the EHCR

The Commissioner also believes assaults justified under the present law are a breach of the right to respect for physical and psychological integrity laid out in article 8 of the EHCR.