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.

In July 2017, the Commissioner published his opinion in the journal of the Law Society of Scotland.

In August 2017, we responded to a consultation around a proposed bill to grant children equal legal protection from assault.

Download our consultation response.

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:

  1. Liechtenstein recommended that physical punishment in the family should be prohibited in all areas of the UK, and that all legal defences of it should be repealed. This would include the repeal of the defence of justifiable assault by the Scottish Parliament.
  2. Liechtenstein also recommended that physical punishment should be explicitly prohibited in all schools, educational institutions, other institutions and all forms of alternative care.
  3. Ireland recommended that physical punishment should be prohibited in all settings, including in the family.
  4. Mongolia recommended that the UK reconsider its position on the legality of the physical punishment of children.
  5. Sweden recommended that the physical punishment of children should be banned so that full protection and freedom from violence would be ensured for all children.
  6. Croatia recommended that the UK prohibited physical punishment against children. It also said the UK should make sure physical punishment is explicitly prohibited in all schools, educational institutions, other institutions and all forms of alternative care.
  7. Estonia recommended that the UK took further actions in protecting the rights of the child by prohibiting all physical punishment.

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.

Equal protection links

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 consultation

In August 2017 we responded to John Finnie’s consultation on a proposed Children (Equal Protection from Assault) (Scotland) Bill.

John Finnie MSP is now analysing the responses. We will be working with all parties in Parliament to ensure the Bill progresses and maintaining our call on Scottish Government to take a lead in bringing forward legislation.

Read our consultation response.