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Why did the Scottish Law Commission think there was a need for law reform and did the 2003 Act do enough to ensure compliance with the Human Rights Act 1998 and international standards in this respect? Physical punishment in Scotland has come under much criticism and pressure in recent years. Many feel there has been a delayed response by the UK government. This essay will consider the past and present status of Scots law in relation to physical force used by parents against their children as a means of discipline in Scotland. It does so by assessing the need for law reform through the Criminal Justice (Scotland) Act 2003 in relation to compliance with the Human Rights Act 1998 and the pressures the UN Committee on the Rights of the Child and international standards imposed respectively. The use of 'reasonable chastisement' as a form of discipline is useless and dangerous to children. The reform of section 511 of the 2003 Act came as response from the Scottish Executive, to the growing public scrutiny of various criminal justice matters. The boundary of reasonable chastisement and excessive force is confusing to some. The need for improvement into child care was prompted in the case of Victoria Climbié. Victoria was a young child, known to police, social and health services who died as a result of neglect and multiple injuries from those who had been entrusted with her safe keeping.
Furthermore, the case of B V Harris (1990)7; where a mother who hit her 8 year old daughter with a belt for swearing at her, was cleared of assault. This case established that any weapon used instantly meant the punishment was illegal. Further factors such as the disability of a child, manner and extent of punishment, physical and psychological effects are also accounted for. The standard of proof for a criminal courts conviction is of reasonable doubt that the punishment was induced under evil intent or to injure rather than discipline. Under the Scotland Act 1998, all the areas devolved to Scottish Parliament and the Scottish Executive must act in accordance with the European Convention on Human Rights (ECHR). Article 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) has placed increasing amounts of pressure and criticism upon criminal law relating to physical punishment. Article 3 states, "No one shall be subjected to torture or inhuman or degrading treatment or punishment". Article 8 states, "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health or morals, or for the protection of the rights of freedoms of others".
declares, "State Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures." Article 13: " Article 37: "States Parties shall ensure that: (a) No child shall be subject to torture or other cruel, inhuman or degrading treatment or punishment..." This type of behaviour was and still is typical of many homes. The argument against it is clear, outlined in a statement by the UN Children's Commissioners in 2002, "We believe that condoning smacking gets in the way of progress. It confuses parents, inhibits child protection and undermines the promotion of positive forms of discipline. It conflicts with our governments' aspirations for children and our society". The key points are that children should receive equal protection from physical assault as adults. The cover of 'justifiable assault', laid out in s.51 of the Criminal Justice (Scotland) Act 2003 should be no longer permitted. Law reform should provide sufficient sources of helpful public education campaigns on constructive forms of regulation and support for parents and carers. Law enforcement, as well as prosecutors should have the correct assistance on how to deal with parents who hit their children. Parents would then not be put on trial for minor smacks, just as adults are not prosecuted for minor assaults on other grown-ups.
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