The Children Are Unbeatable! Alliance campaigns for the UK to satisfy human rights obligations by modernising the law on assault to afford children the same protection as adults.

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Scotland

TimeLine

January 2007
In its report on Scotland’s compliance with the UN Convention on the Rights of the Child, the Scottish Executive states that there are no reported cases involving Section 51. Does that mean the law is not being used or is it ineffective in dealing with assaults on children?
Section 4(2)(b) Commissioner for Children and Young People (Scotland) Act 2003
Section 5(2)(b)
Letter dated 1st February 2005.
But what about me? is a research study of children’s calls to ChildLine Scotland with concerns about the health and wellbeing of their parents and significant others. The study was carried out by the CRFR at Edinburgh University and funded by the ESRC. The research report is currently in press.
Para. 79, 'An Inquiry into the Care and Protection of Children in Eilean Siar'
Justice 1 Committee Meeting

January 2006
A joint statement is issued by the four UK Commissioners for Children and Young People calling for equal protection from assault as adults. They point out that:
"Children have the same right as adults to respect for their human dignity and physical integrity and to equal protection under the law, in the home and everywhere else. There is no room for compromise, for attempting to define "acceptable" smacking."
In Scotland, the Scottish Executive responded by repeating its intention not to revisit legislative reform.

16th November 2005
An amendment to the Family Law (Scotland) Bill is lodged at Stage 2 by Marlyn Glen MSP. The amendment focuses on parental rights and responsibilities and specifically obliges parents to "treat the child with respect for the child’s person and individuality and may not subject the child to physical punishment or other injurious or humiliating treatment."
The Deputy Minister for Justice states his opposition to the amendment as
"We need time for the legislation to bed in, to be tested and tried... I argue that Parliament has spoken on the matter and that we should let the view of Parliament prevail." (Columns 230-2301)
Due to the lack of support from other MSPs, the amendment is not even pressed to a vote.

7th October 2005
The investigation into child abuse and neglect in the Western Isles in 2005 is published
and is instructive about the use and effect of physical punishment in one home. The Social Work Inspection Agency concluded that
"...the children were subjected to physical abuse throughout their childhood until their removal from home. Some of the physical injuries to the children were caused by over-chastisement by Mr A. Once in England and twice in Eilean Siar he admitted at the time to losing his temper and/or causing an injury.
The Report went on to point out:
"We recognise that during the period when these physical injuries to the children occurred, common law entitled someone with parental responsibilities and rights relating to a child and someone with care and control of a child to physically punish the child. It entitled parents to use force to discipline their children provided their actions could be justified in court as ‘reasonable chastisement’. Section 51 of the Criminal Justice (Scotland) Act 2003 set out to clarify the law relating to the physical punishment of children. The 2003 Act specifically prohibited blows to the head, shaking and the use of an implement."
"However, in all other cases the defence of ‘reasonable chastisement’ remains and the onus is on the prosecutor to prove that the punishment went beyond this. Mr and Mrs A were, and still would be, legally entitled to physically punish the children and if prosecuted could have claimed a defence of ‘reasonable chastisement’. While there is evidence that professionals, particularly in England, did encourage Mr and Mrs A to use more positive methods of discipline, they could not legally prevent them from using physical punishment." (para 80, Ibid)

April 2005
A study of the ChildLine database by the Centre for Research on Families and Relationships at Edinburgh University, found alarming levels of violence reported in calls from children suffering physical abuse. Children tell of physical assaults that are frequent, brutal and sadistic. Whilst they use many terms to describe the nature of their abuse including smacking, slapping and hitting, they more commonly discuss it in terms of ‘being battered’, ‘beaten’, ‘hammered’, ‘punched’, ‘kicked’ and so on. Children often talk about having marks, bruises and abrasions after assaults and some children talk about being kept off school until their bruises are healed.
There is also a general perception that it is mostly men who are violent towards women and children yet this Study found that in a large sample of children calling about physical abuse, 40% named their father as the perpetrator and 32% their mother.

February 2005
An FoI request to the Solicitor General reveals that no statistical information is being gathered on the operation of Section 51. As 38,000 charges of simple assault have been reported since 1st October 2003 to February 2005 yet ‘no specific offence relating to the physical punishment of children’, the Crown Office’s national database does not record specifically whether the victim in an assault charge is a child. So it was judged to be "… impractical to extract the relevant information from our files."

17th June 2004
An oral Parliamentary answer by the Minister for Justice advises that 700,000 leaflets have been issued to parents advising them of the change in the law. Also funded are a variety of targeted projects to support parents but no comprehensive service programme to support parents.

April 2004
Scotland’s Commissioner for Children and Young People (SCCYP) is established and the functions include:
Keep under review the law, policy and practice relating to the rights of children and young people with a view to assessing the adequacy and effectiveness of such law, policy and practice.
The Commissioner must have regard to any relevant provisions of the United Nations Convention on the Rights of the Child.
A number of positive statements are issued in respect of physical punishment and are welcomed by CAU.

19th February 2003
The Scottish Parliament debates Stage 3 of the Bill including Amendment 93 which seeks to limit the complete ban on shaking children to "with use of unreasonable force". That amendment was defeated and the Bill was passed with Clause 43 becoming Section 51 of the Criminal Justice (Scotland) Act 2003.
During the debate, the Minister for Justice announced action on the public information campaign:
"An information campaign is currently being developed to ensure that parents are informed about the effects of physical punishment, and to guide them towards positive forms of parenting and discipline. As I said, information alone will not suffice. A dual approach of information and legislation is required in order to protect Scotland's children and to clarify the law on what constitutes reasonable chastisement."
http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-03/sor0219-01.htm http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-03/sor0219-01.htm

9th October 2002
UN Committee on the Rights of the Child publishes its Concluding Observations on the UK’s Compliance with the UN Convention on the Rights of the Child. As in its report of 1995, the Committee urges a total ban on physical punishment in the home and for a public information campaign on positive non-violent discipline:
"38. The Committee recommends that the State party:
(a) With urgency adopt legislation throughout the State party to remove the "reasonable chastisement" defence and prohibit all corporal punishment in the family and in any other contexts not covered by existing legislation;
(b) Promote positive, participatory and non-violent forms of discipline and respect for children’s equal right to human dignity and physical integrity, involving children and parents and all those who work with and for them, and carry out public education programmes on the negative consequences of corporal punishment."
In 1995, the UN Committee had said:
"31. The Committee is also of the opinion that additional efforts are required to overcome the problem of violence in society. The Committee recommends that physical punishment of children in families be prohibited in the light of the provisions set out in articles 3 and 19 of the Convention. In connection with the child's right to physical integrity, as recognized by the Convention, namely in its articles 19, 28, 29 and 37, and in the light of the best interests of the child, the Committee suggests that the State party consider the possibility of undertaking additional education campaigns. Such measures would help to change societal attitudes towards the use of physical punishment in the family and foster the acceptance of the legal prohibition of the physical punishment of children."

At Stage 2, Scott Barrie MSP proposed an amendment for a complete ban. He was the only MSP at the Justice 2 Committee to support the ban, one MSP abstained and the rest voted against it.

18th September 2002.
Scottish Executive publishes research commissioned by NFO System Three which demonstrates a dramatic change in views. In 1991, 83% thought it lawful to hit a 3 year old whereas in 2002, 48% thought it should be unlawful to hit a child under 2 which rose to 51% for those with children under 5 years.
In the Stage 1 debate, the Minister for Justice confirmed that the Executive would propose an amendment to delete the section on banning the hitting of children aged 2 and under but conceded:
"...a majority of parents thinks that there should be no question of hitting babies under the age of one".

September 2002
The Justice 2 Committee produces its Stage 1 report and rejects the principle that children under three should have legal protection from assault. Immediately the Justice Minister and the First Minister recommend to the Scottish Cabinet that "the age related element in the Bill should not proceed". So the Executive agreed to amend its own Bill which had been the subject of extensive consultation including consultation with children.
CAU promptly produces a briefing for MSPs outlining the arguments for a ban.

March 2002
The Criminal Justice (Scotland) Bill is introduced with Section 43 (3) outlawing the hitting of children under three and 43(3)(a) banning the use of implements, shaking and delivering blows to the head. Justice 2 Committee is delegated lead Committee. CAU gives evidence to the Committee including lead people from Barnardo’s, CHILDREN 1ST and Save the Children. Supportive evidence was also given by the Convention of Scottish Local Authorities, the Association of Chief Police Officer’s in Scotland, the Association of Directors in Social Work and Women’s Aid.

December 2001
Scottish Executive issues White Paper setting out measures to be included in a Criminal Justice (Scotland) Bill. ‘Making Scotland Safer: Improving the Criminal Justice System’ states that its objective is to "…reduce the level of violence in society, and it is well known that children learn their habits by example. Physical punishment has its uses, but it may also teach a child that force is permissible to get your own way."
One of the recommendations was that hitting children under three would be outlawed. The Children are unbeatable! Alliance in Scotland stresses that it is not possible to achieve the Executive’s stated objectives by allowing adults to hit children aged three and over. CAU calls for a complete ban and thousands of people in Scotland complete the postcard calling for an end to hitting children.

November 2001
Save the Children publishes "It Doesn’t Sort Anything" which reports the views of children and young people about the use of physical punishment. 94% of children said ‘yes’ there are many other more effective ways to discipline a child other than using physical punishment e.g. no tv or ground them. 74% said it was wrong for a parent or another adult to hit a child.
"A big person should not hit a small person" girl aged 9
"If you smack dad he gives you a row…but why can dad smack the child" boy aged 6
Children also tell of the effects
"You feel anger and feel as though you have no self-worth" girl aged 10

6th September 2001
Scottish Executive announces legislative proposals to provide "legal protection for children to prevent the use of ‘unreasonable and excessive’ punishment.

Campaign briefing

The UN Committee on the Rights of the Child has strongly urged our Government to ban the physical punishment of children and to support parents in non-violent discipline. In its reports of 1995 and again in 2002, it urged our government to reform the law to give children legal protection from assault and to mount a public education campaign on the dangers of hitting children.

The Scottish Parliament was debating legal change on physical punishment when the Concluding Observations were published in October 2002. The Parliament decided on partial legislative reform which had been specifically rejected by the UN in 2002.

This issue demonstrates a number of other failings in respect to the UN’s Concluding Observations:

After the legislation was implemented, the Scottish Executive failed to gather statistical information which the Committee urged in para. 19 of the Concluding Observations.

The Law in Scotland

Currently in Scotland, the law does not give children the same protection from assault as adults. The law allows adults to physically punish children if it can be deemed to be ‘reasonable chastisement’ but Section 51 of the Criminal Justice (Scotland) Act 2003 does prohibit adults from delivering blows to the head, shaking and using an instrument to ‘punish’ children.

The reform introduced in October 2003 effectively permits a "justifiable assault" of a child. Section 51 of the Criminal Justice (Scotland) Act 2003 expressly contradicts the Committee’s recommendation to remove the "reasonable chastisement" defence and prohibit all corporal punishment in the family and in any other contexts not covered by existing legislation. (Paragraph 38 of the Concluding Observations)

An amendment to the Family Law (Scotland) Bill in November 2005 did not proceed to a vote at the Justice 1 Committee due to the lack of support. Marlyn Glen MSP had agreed to submit an amendment to the Bill which would have focused on parental rights and responsibilities and specifically obliged parents to "treat the child with respect for the child’s person and individuality and may not subject the child to physical punishment or other injurious or humiliating treatment."

At the meeting on 16th November 2005, the Deputy Minister for Justice stated his opposition to the amendment as
"We need time for the legislation to bed in, to be tested and tried… I argue that Parliament has spoken on the matter and that we should let the view of Parliament prevail." (Columns 230-2301)

Who Supports Abolition?

CAU has over 100 organisations and a number of individuals supporting its campaign in Scotland. Here are some of the reasons for their support.

Child protection workers argue that banning the physical punishment of children would help them e.g. when a child has bruising on its legs over a sustained period and parents simply argue 'reasonable chastisement' of a naughty child.  A clear ban would allow those workers to intervene because the law is unequivocal and they could intervene earlier and prevent a situation escalating. 

Social work professionals who are experienced in working with children at risk of abuse consistently state the importance to child protection work of a simple legal message on hitting of children. The National Association of Social Workers in Education, submission to Scottish Law Commission’s Report on Family Law

"As social workers we constantly see children who are suffering at the hands of their parents. It is very difficult to work with parents to get them to desist from hitting their children when they can assert that they have the right. It becomes a matter of degree which is open to debate and personal interpretation."

People from all walks of like support the campaign. Current law makes it harder for people who suspect abuse to report their concerns. When children have been seriously injured or even killed by their parents, it often emerges that neighbours, friends or other relatives knew some of what was going on but did not feel able to report it. The legal permissibility, and public acceptability, of ‘physical chastisement‘ can prevent people acting on their concerns.

Child Protection Inquiry – Case Example

The investigation into child abuse and neglect in the Western Isles in 2005 was instructive about the use and effect of physical punishment in one home:

"We concluded that the children were subjected to physical abuse throughout their childhood until their removal from home. Some of the physical injuries to the children were caused by over-chastisement by Mr A. Once in England and twice in Eilean Siar he admitted at the time to losing his temper and/or causing an injury. In a later statement to police he said:

‘I did have a temper…like anybody I became aggressive, shouting and shaking…if I had to smack them I would smack them, but I’m heavy handed …on the legs…bruising…’

The Report went on to point out:
"We recognise that during the period when these physical injuries to the children occurred, common law entitled someone with parental responsibilities and rights relating to a child and someone with care and control of a child to physically punish the child. It entitled parents to use force to discipline their children provided their actions could be justified in court as ‘reasonable chastisement’. Section 51 of the Criminal Justice (Scotland) Act 2003 set out to clarify the law relating to the physical punishment of children. The 2003 Act specifically prohibited blows to the head, shaking and the use of an implement."

"However, in all other cases the defence of ‘reasonable chastisement’ remains and the onus is on the prosecutor to prove that the punishment went beyond this. Mr and Mrs A were, and still would be, legally entitled to physically punish the children and if prosecuted could have claimed a defence of ‘reasonable chastisement’. While there is evidence that professionals, particularly in England, did encourage Mr and Mrs A to use more positive methods of discipline, they could not legally prevent them from using physical punishment." (para 80, Ibid)

Promote Positive, Participatory and Non-Violent Forms of Discipline

CAU agrees with UN Concluding Recommendation 38(b) and believes much requires to be done to deliver the message in a comprehensive, public information campaign. Again in contradiction of the Committee’s recommendation, in Scotland there has been no sustained national campaign to promote positive, participatory and non-violent forms of discipline. 700,000 leaflets were initially sent out by the Scottish Executive in 2003 – 04 and targeted interventions directed at some parents though such initiatives as Home Start. Leaflets can only be effective if part of a wider public information and support campaign. Although specific projects are being funded, there is a need for comprehensive, accessible and sustained information.

Respect for the Views of the Child

In paragraph 30 of the Concluding Observations, the Committee repeats the importance of obtaining and respecting the views of children. Save the Children spoke to children who told about the pain that hitting causes: "sore and hurt inside", "scared", "ashamed and angry". Children are also clear why parents sometimes hit them e.g. "because they are angry and stressed". Children suggest alternatives ways for parents to discipline such as "ground them" or "stop them watching TV". Unfortunately the views of children failed to influence the design and delivery of policy on physical punishment in Scotland.

Much of the debate has focused on ‘trivial’ chastisement by parents which fails to include the reality of life for many children. A recent study of the ChildLine database by the Centre for Research on Families and Relationships at Edinburgh University, found alarming levels of violence reported in calls from children suffering physical abuse. Children tell of physical assaults that are frequent, brutal and sadistic. Whilst they use many terms to describe the nature of their abuse including smacking, slapping and hitting, they more commonly discuss it in terms of ‘being battered’, ‘beaten’, ‘hammered’, ‘punched’, ‘kicked’ and so on. This violence often includes the use of implements and many accounts describe adults using items such as belts, baseball bats, knives, golf clubs, whips or sticks. Children often talk about having marks, bruises and abrasions after assaults and some children talk about being kept off school until their bruises are healed. In a few cases children talk about broken bones.

There is also a general perception that it is mostly men who are violent towards women and children yet this Study found that in a large sample of children calling about physical abuse, 40% named their father as the perpetrator and 32% their mother.

The physical abuse that these and many other children in Scotland are suffering is overwhelmingly a hidden problem that is shared most amongst children themselves. A breakdown of ‘who children tell’ showed that whilst a small percentage of children who call ChildLine Scotland about physical abuse confide in parents or other adults, almost none tell social services or other ‘authority figure’. In fact, the people children are most likely to have shared their experiences of violence with are other children. In Scotland, are we permitting a culture where violence against children is not only commonplace but also ‘acceptable’?

Here are the voices of children and concerned adults who called ChildLine.

Adult Caller
Concerned about child who has been hit by Mum and her partner. The child stated he was hit with a fishing rod. Has bruises on his bottom and hand mark on his arm.

Adult Caller
Concerned about the way father treats his sons. Boys said they don't like their dad as he hits them. Father denied this but then caller caught him hitting oldest son around the head.

Child Caller
I’m scared to go home, mum said she hates me and I'm the ruin of her life. Dad and mum hit me - she keeps me in for months. I can't concentrate on schoolwork; I make myself sick over it. It started months ago. Mum never tells me she loves me. They drink every night. They fight constantly. I’ve tried to take an overdose twice.

Child Caller
My mum and dad fight really badly. I tried to stop them before but he turned on me. He hit me with a belt and I had marks down my arms. He wouldn’t let me go to school until they had gone.

Statistical Information on Physical Punishment

In paragraph 19 of the Concluding Observations, the Committee stresses the importance of collecting data on all persons under 18 years in respect of "all areas covered by the Convention".

Despite a request under the Freedom of Information (Scotland) Act 2002 to the Solicitor General in February 2005 and a subsequent request for a review, we do not have information about how many cases have been prosecuted. Indeed we had understood that the information was not being gathered as there have been 38,000 charges of simple assault reported since 1st October 2003 to February 2005. As there is ‘no specific offence relating to the physical punishment of children’, and the Crown Office’s national database does not record specifically whether the victim in an assault charge is a child, then the only way to gather the information is to undertake a manual search and that would exceed the cost ceiling on FoI. So the Solicitor General concluded that "it will simply be impractical to extract the relevant information from our files."

In its report on implementation of the UN Convention on the Rights of the Child the Scottish Executive has stated that there are no reported cases involving Section 51. Where a case does not result in prosecution or referral to a children’s hearing, no official record is published, unless the case has been the subject of an appeal. So although it is stated that there are no reported cases, this information is entirely inadequate to assess how effective or otherwise Section 51 actually is. For example we do not know if 100 or no cases have been referred by the police to the Procurator Fiscal and we do not know if there have been any convictions under Section 51.

There also appears to be no willingness to undertake research on the matter. Hugh Henry, the Deputy Minister for Justice commented during the debate on the amendment to the Family Law (Scotland) Bill in 2005 that:
"It is too early to do comprehensive research; time is still needed. I am not sure that there would be enough evidence to justify doing research now. However, as with other pieces of legislation, we will continue to consider the legislation that is put into effect." (Column 2300, 16th November 2005, Justice 1 Committee Meeting).

It is useful to reflect that physical abuse calls to ChildLine from November 2005 – November 2006 amount to 13,801 so the problem remains significant for many children in Scotland.

Overview

Legislative reform on physical punishment is a devolved matter to the Scottish Parliament so fulfilling the UNCRC Concluding Observations sits with the Parliament and with the Scottish Executive.

Since Scotland’s Commissioner for Children and Young People (SCCYP) was established a number of statements have been issued in respect of physical punishment which we have welcomed. This is entirely in line with the functions of SCCYP which include having regard to any relevant provisions of the United Nations Convention on the Rights of the Child.

In January 2006, a joint statement was issued by the four UK Commissioners for Children and Young People calling for equal protection from assault as adults. They pointed out that:
"Children have the same right as adults to respect for their human dignity and physical integrity and to equal protection under the law, in the home and everywhere else. There is no room for compromise, for attempting to define "acceptable" smacking."

This view reflects global initiatives including the United Nations Secretary-General’s Study on Violence against Children published in October 2006 and the Council of Europe’s Commissioner for Human Rights who set out his views in an "Issues Paper".

CAU in Scotland remains perplexed that despite global initiatives, the Concluding Observations of the UN Committee on the Rights of the Child in 1995 and in 2002, and broad support from professionals, children’s charities and children themselves, the Scottish Parliament and the Scottish Executive remains opposed to reforming legislation in Scotland.

There have been a number of legislative reforms which have sought to tackle negative cultural actions such as banning smoking in public places and public information campaigns to address harmful cultural attitudes such as zero tolerance on violence against women. So action has been taken if the issue is judged a public policy priority. Legal reform and carrying out public education programmes on the negative consequences of corporal punishment should be undertaken by the Scottish Executive as a matter of urgency.