Outlawing the physical punishment of children would bring clarity to the law and help to bring Scotland in line with its international obligations, the Law Society of Scotland said today.
In its response to a consultation by John Finnie MSP, who wants to bring in a member's bill at Holyrood to remove the common law defence of "reasonable chastisement" of children, the Society stops short of full support for the proposal – since it dioes not comment on matters of "social policy" – but indicates its sympathy.
"While it is not for us to comment on social policy, we would agree that it is generally good to seek clarity in the law and that the development of the law in Scotland to have increasing recognition of children rights is a positive trend", the response states.
"If the law in this area is changed as per the proposed bill, it will set clear boundaries as to what is acceptable when it comes to the physical punishment of children. It will also bring Scotland in line with our international obligations. On this basis, the Society is generally supportive of the proposal but would need to see a draft bill in order to comment further."
Ian Cruickshank, convener of the Society's Criminal Law Committee, commented: “There has been a change in culture over the years and physical chastisement of children is increasingly understood to be both ineffective and out of step with our understanding of children’s rights.
“These proposals seek to provide clarity in the law and to clearly define the limits of acceptable behaviour which would be applicable to all, regardless of age. If the law is changed in line with the proposed bill, it would set clear boundaries as to what is acceptable when it comes to the physical punishment of children.”
Morag Driscoll, the Society’s Family Law Committee convener, said: “The international legal community is clear that corporal punishment is not in keeping with the present day understanding of human rights. Physical punishment of children is now unlawful in 52 countries around the world, including the vast majority of those in the European Union.
“Scots law has been criticised by international organisations because, although most forms of physical force used against a child are unlawful, it has not gone so far as to make all forms of physical force against children unlawful. By retaining the common law defence of reasonable chastisement, the law in Scotland signals that some forms of assault against children are acceptable.
“The UK is signatory to and has ratified the United Nations Convention on the Rights of the Child; however the UN Human Rights Committee and UN Committee on the Rights of the Child, have both stressed that the law in the United Kingdom is falling short when it comes to the protection of children. They have called for the law to be reformed as a matter of priority to put an end to corporal punishment in all settings, including the home.”