family law

Common law in Scotland identifies no liability to the parents inflicting physical punishment to their child to the extent which the court finds moderate. However, under criminal law, the Children and Young Persons (Scotland) Act 1937 entitles parents, guardians or anyone allowed the legal responsibility of a child, the right to exercise moderate force as a form of discipline. In addition, the child is to be protected from cruelty under section 12 of the 1937 Act. This will also result in the child requiring compulsory measures of supervision under section 52 of the Children (Scotland) Act 1995. (Jane Mair, Avizandum Statutes on Scots Law, 4th Edition, pg 210)

The case of R v Hopley (1860) amplified the need for reform. Lord Chief Justice Cockburn held that, “If it [the punishment] be administered for the gratification of punishment or rage or if it be immoderate or excessive in its nature or degree, or if it be protracted beyond the child’s power of endurance or with an instrument unfit for the purpose and calculated to produce danger to life and limb [then] the punishment is unlawful”.

This led to courts looking at the age, nature, manner and extent of the physical punishment to vital organs or the head as seen in Peebles v McPhail (1990). Furthermore, the case of B V Harris (1990); 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”. (Jane Mair, Avizandum Statutes on Scots Law, 4th Edition, pg 335)

The leading case to date on inhuman punishment is A v United Kingdom (2000). The facts of this case were that a 9 year old boy had been beaten by a garden cane by his father, resulting in bruises to the boy’s calves, thighs and buttocks. Some bruises lasted for over a week and the defendant was charged with assault occasioning actual bodily harm. In defence the defendant claimed reasonable chastisement of, “a difficult boy who did not respond to parental or school discipline”. A jury found him not guilty and the case was then taken to the European Court on Human Rights after the European Commission found an infringement of Article 3. The UK was also in violation of Article 3 and domestic law had miserably failed in the protection of the young boy.

JUDGE ????? held that, “If a man deliberately and unjustifiably hits another and causes some bodily injury, he is guilty of actual bodily harm. What does unjustifiably mean in the context of this case? It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent, in this case the stepfather, provided that the correction be moderate in the manner, the instrument and the quantity of it. Or, put another way, reasonable. It is not for the defendant to provide it was lawful correction, it is for the prosecution to prove it was not”.

Increased pressure from the specific group of the UN Convention on the Rights of the Child (1989) stressed the need for the protection of children. The UN Committee on the Rights of the Child outlined their stress twice in 1995 and 2002. In its report to the UK it stated, “...governmental proposals to limit rather than remove the ‘reasonable chastisement’ defence do not comply with the principles and provisions of the Convention...,particularly since they constitute a serious violation of the dignity of the child” and that the UK were in clear breach of Articles 3, 13 and 37 which are significant to physical punishment:

Article 3(2) 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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Bibliography

B. Phillips, “The Case for Corporal Punishment in the United Kingdom. Beaten into submission in Europe?” (1994) 43 I.C.L.Q. 153. (Accessed on HeinOnline on 24th March)

Criminal Justice (Scotland) Bill: Children (Accessed on http://www.scottish.parliament.uk/business/research/pdf_res_brief/sb02-52.pdf on 24th March)

Jane Mair, Avizandum Statutes on Scots Law, 4th Edition, pgs 182, 210, 335.

Norrie, Sutherland and Cleland, Stair Memorial Encyclopedia, Reissue Volume: Child and Family Law (2004), paras. 155-157.

Physical Punishment, SCCYP Policy Position Paper No. 1 (2006), accessed 24th March at : http://www.sccyp.org.uk/webpages/pr_single.php?article=Physical%20Punishment&id=39

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