Children's rights and physical punishment
An extended version of this month's opinion article develops the ECHR arguments for banning physical punishment of children
Scottish law provides for children to be assaulted by their parents or carers for the purpose of punishment – an affront not only to the human dignity of the child, but to the core principles of the United Nations Convention on the Rights of the Child (UNCRC). This, along with one of the lowest ages of criminal responsibility in the world, set at just eight years of age, paints a shameful picture of how we view children in Scotland.
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 Scottish Governments have failed to do so.
The Council of Europe’s Commissioner for human rights summed it up well:
“The invention of concepts such as ‘reasonable chastisement’ and ‘lawful correction’ in the law arises from the perception of children as the property of their parents. This is the modern equivalent of laws in force a century or two ago allowing masters to beat their slaves or servants, and husbands to beat their wives. Such ‘rights’ are based on the power of the stronger over the weaker and are upheld by means of violence and humiliation.
“Children have had to wait until last to be given equal legal protection from deliberate assaults – a protection the rest of us take for granted. It is extraordinary that children, whose developmental state and small size is acknowledged to make them particularly vulnerable to physical and psychological injury, should be singled out for less protection from assaults on their fragile bodies, minds and dignity (Children and corporal punishment: “the right not to be hit, also a children’s right” CommDH/IssuePaper(2006)11).
The UNCRC, adopted in 1989, is the most rapidly adopted and widely ratified human rights treaty in the world. It marks a universal consensus that children are holders of human rights on an equal footing with adults. The preamble affirms that precisely because of their physical and mental immaturity children need special safeguards and care, 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 from any person who has care of the child. Article 37 requires protection from torture or other cruel, inhuman or degrading treatment or punishment, which reflects protections in the ECHR and other international treaties. Various other articles reinforce the child’s right to physical integrity and protection of their human dignity.
Recently the Equality & Human Rights Committee of the Scottish Parliament recommended that Scotland incorporate the UNCRC into domestic law; something my office has been calling for since its inception. It is also the campaign theme chosen by the Scottish Youth Parliament for the next year.
The UN Committee on the Rights of the Child has systematically and tirelessly insisted that children’s right to protection from violence and to equal protection under the law means that states which have ratified the Convention must enact legislation which prohibits, without exception, all forms of corporal punishment of children in all settings. Campaigns to raise awareness and encourage the development of positive, non-violent childrearing and educational practices have been suggested by the committee, but it is clear that these are in addition to, not instead of, legal protection. (All of the CRC Committee documents are at this link. For an analysis of the committee’s comments related to corporal punishment, see this link.)
The committee has now considered the UK’s implementation of the UNCRC on four occasions – in 1995, 2002, 2008, and 2016. On each occasion, the committee has expressed concern that we do not provide legal protection for children and has recommended a law change.
The Committee on the Rights of the Child is not alone. Committees monitoring many of the other UN treaties have found Scotland to be in breach of ICESCR, ICCPR, CEDAW, and CAT. The Scottish Government has indicated that it will not accept the seven recommendations directed at the UK on the issue in the latest Universal Period 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 the 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.
Since the 1970s the European Court of Human Rights has progressively condemned corporal punishment of children in a series of judgments against the UK: Tyrer v United Kingdom, Judgment of 25 April 1978, Series A, No. 26; 2 EHRR 1; Campbell and Cosans v UK (1982) 4 EHRR 293; Costello-Roberts v UK (1993) 19 EHRR 112. On each occasion the law has been amended only to meet the minimum requirements of the judgment rather than properly respect the rights of children. It should not require a child to take a case to Strasbourg to get the Scottish Government to act.
The European Court of Human Rights has stressed that the ECHR is a living instrument. In interpreting its provisions the European Court must have regard to the changing conditions within the respondent state and within contracting states generally, and respond 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. (See further at this link.) Even with the limitations currently provided in the Criminal Justice (Scotland) Act 2003 Act, the minimum level of severity required to trigger article 3 could be reached.
The protection against state interference with respect for family life is an important one, but it is the source of a great deal of misinformation. The debate around equal protection for children is often focused around a perceived parental “right” to discipline children. However, the concept of the right to respect for family life does not extend to the use of violence – whether it be against a spouse or a child. The protection of respect for private life under article 8 recognises that a person’s body is an intimate aspect of his or her private life. Article 8 requires more than just refraining from actively breaching this right through action by the state such as police, teachers, health professionals; it also requires the state to take positive action to protect people from private individuals. The right to respect for private and family life does not mean that a parent can do whatever they want behind closed doors – it means that the state has a duty to ensure everyone can enjoy family and private life by being protected from violence – even from family members.
Assaults justified under current Scottish 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 as there are effective alternative methods of correction and discipline which do not breach article 8. Equally, the degradation and humiliation of children can never be a proportionate response.
Time to commit
John Finnie MSP is bringing forward a member’s bill to give effect to our international obligations by removing the defence of justifiable assault as currently provided by the Criminal Justice (Scotland) Act 2003, ensuring that nothing in prior law can be interpreted as allowing for assault for the purpose of punishment. Lessons learned from other countries which have made similar reforms show us that public tolerance for violence drops significantly as a result of changes in the law. I welcome his leadership on this issue, but the Scottish Government must not see itself as a passive actor and wait for the bill to progress; it must commit to change, giving children the same legal protections as adults.
Bruce Adamson is Children and Young People's Commissioner Scotland