Equal protection

Signs supportive of equal protection outside the Scottish Parliament.

On 3 October 2019 the Children (Equal Protection) (Scotland) Act was passed by the Scottish Parliament, meaning children in Scotland now have the same protections against assault as adults.

Equal Protection is something our office has been calling for since 2004, and we’re delighted to see it pass into Scots law. Assaulting a child for the purposes of punishment should always be against the law, and our previous law was untenable in international human rights law terms.

Commissioner Bruce Adamson said:

“Assaulting a child for the purpose of punishment should never be legal and this important law change brings Scotland into line with its international human rights commitment to provide children with comprehensive legal protection from violence. The UN Convention on the Rights of the Child sets out that every child has the right to grow up in a family environment of happiness, love and understanding – violence should never be part of family life. The Scottish Parliament has played its crucial role as a human rights guarantor and I commend John Finnie on his strong human rights leadership on this issue.”

We’ve been lucky to work with children and young human rights defenders who helped make this law happen, as well as adults from organisations in Scotland and beyond who have campaigned for it for several years.

Our policy work on Equal Protection

We provided human rights evidence to MSPs as the Children (Equal Protection) (Scotland) Bill made its way through the Scottish Parliament.

Read our briefing to MSPs ahead of Stage 3 of the Bill.

Read our briefing to MSPs ahead of Stage 2 of the Bill.

Read our briefing to MSPs ahead of Stage 1 of the Bill.

In November 2018, we responded to the Equalities and Human Rights Committee consultation on the Bill, which the Commissioner fully supported.

Read the consultation response.

What the Children (Equal Protection from Assault) (Scotland) Act did

While Scots law protects adults from all forms of physical violence, the Criminal Justice (Scotland) Act 2003 had provided a defence of justifiable assault of a child, which could be exercised where it was claimed a violent act against a child was physical punishment carried out in exercise of a parental right.

The Act removed:

  • the removal of this statutory defence, and
  • the removal of previous laws that provided similar defences.

Because of this, there’s now no form of violence that’s acceptable against a child but not an adult— people of all ages in Scotland are equally protected.

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 had repeatedly called on Scotland to honour its international human rights commitments to provide children with total protection from assault. However, successive Governments 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 had been amended only to meet the minimum requirement of the judgment, rather than to properly respect the rights of children.

Thanks to the passage of the (Equal Protection) (Scotland) Act, this is no longer the case in Scotland.

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 have exceeded this minimum level, even given 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 Criminal Justice (Scotland) Act were a breach of the right to respect for physical and psychological integrity laid out in article 8 of the EHCR.

Equal protection links

Smacking Ban Brings Scotland In Line With Human Rights Standards, Says Children’s Commissioner

Commissioner Bruce Adamson talked to RightsInfo in May 2019 on why equal protection from assault for children was something that's long overdue.

Read the article.

Journal of the Law Society of Scotland: Opinion piece

In this 2017 article, Commissioner Bruce Adamson gave 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. 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 previous 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.