Assaulting a child for the purpose of punishment should never be lawful. There is no such thing as a reasonable level of violence. Legalised violence against children in one context risks tolerance of violence against children generally.
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 protection from assault, but successive Governments have failed to do so. 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 properly respect the rights of children. It should not require a child to take a case to Strasbourg for the Scottish Government to act.
John Finnie MSP is bringing forward a member’s bill to give effect to our international obligations by removing the defence of justifiable assault in the Criminal Justice (Scotland) Act 2003. I welcome his leadership on the issue, but the Government must not see itself as a passive actor and wait for the bill to progress; it must commit to legislative change.
The preamble to the United Nations Convention of the Rights of the Child affirms that precisely because of their physical and mental immaturity, children need special safeguards, including appropriate legal protection. Article 19 requires legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence by any person having care. Article 37 requires protection from torture or other cruel, inhuman or degrading treatment or punishment, reflecting the ECHR and other international treaties. Other articles reinforce the child’s right to physical integrity and protection of their human dignity.
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. Campaigns should run to raise awareness of its negative effects and encourage positive, non-violent child-rearing and educational practices – but in addition to, not instead of legal protection.
Monitoring committees have found Scotland to be in breach of other UN covenants and conventions. The Scottish Government has indicated that it will not accept the seven recommendations directed at the UK on the issue in the latest Universal Periodic Review at the Human Rights Council, to be adopted in September. This rejection of children’s right to respect for human dignity and physical integrity and to equal protection under the law cuts to the heart of Scotland’s commitment to the human rights framework.
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, to create a continent free of corporal punishment. Forty of the 47 member states have now provided equal protection for children or committed to do so. The European Committee of Social Rights has repeatedly found the UK in breach of article 17 of the European Social Charter.
The European Court of Human Rights has stressed that the ECHR is a living instrument. In interpreting its provisions the court must have regard to changing conditions within the respondent state and contracting states generally, responding to any evolving convergence as to the standards to be achieved. Given the convergence across Europe and the significant evidence of the effect of violence on children, I consider the failure to provide children with equal protection from assault is a breach of the ECHR. Even with the current limitations in the 2003 Act, the minimum level of severity under article 3 might be breached.
Assaults justified under the present law are a breach of the right to respect for physical and psychological integrity protected by article 8. Such a breach cannot be justified as a response to any pressing social need; there are effective alternative methods of correction and discipline. The degradation and humiliation of children can never be a proportionate response. A child should not have to seek recourse through the courts to be protected from assault.
The Scottish Government must act.
In this issue
- Family law: still scope for reform
- People's court
- The importance of lawyers in a democratic society
- Thy will be done
- Children's rights and physical punishment
- Pension sharing and professional negligence
- Reading for pleasure
- Opinion: Bruce Adamson
- Book reviews
- President's column
- People on the move
- 400 years – still innovating
- Litigation: a bill to settle
- Access to justice: the small print
- Benefits of devolution
- The changing role of the courts in our democracy
- Core values
- The will bank opportunity
- Deep and meaningful
- The fall and rise of interrogatories
- To act or not to act?
- Immigration issues: more red tape
- Taxman scores winner in Rangers contest
- EIA: the regimes change
- Scottish Solicitors' Discipline Tribunal
- Practitioners or salesmen?
- Where the buck stops
- Law reform roundup
- Cyber basics for lawyers
- Practice points from missives review
- Money laundering update: new regulations in force
- Courts raise the stakes
- May: the force be not with you
- Conference success
- SYLA: 2016-17 in focus
- Ask Ash