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Proposed Changes to the Law on Physical Punishment

Proposed Children (Equal Protection From Assault)(Scotland) Bill

The Bill proposal is being put forward by an individual member of the Scottish Parliament, John Finnie MSP.  At the moment, if parents and those looking after children use physical punishment, they can raise a defence against a charge of assault, claiming that what they did was “reasonable chastisement” and therefore not an offence.  This means that certain forms of physical punishment are currently not against the law.

The Scottish Government understands that Mr Finnie’s proposed Bill would not introduce a new criminal offence.  Instead, it would remove the defence available to parents and others.  They could therefore no longer claim that a physical punishment of their child was a “reasonable chastisement”. 

A number of other countries, including New Zealand and the Republic of Ireland, have already passed similar legislation.

The Scottish Government is setting up an Implementation Group with representatives from stakeholders and professional groups to discuss the actions needed if this Bill were passed. The agenda and minutes of these meetings will be published.

Currently, Section 51 of the Criminal Justice (Scotland) Act 2003 prohibits the following forms of physical punishment of children:

  • a blow to the head

  • shaking
  • punishing with an implement

In addition, section 51 provides that "where a person claims that something done to a child was a physical punishment carried out in exercise of a parental right or of a right derived from having charge or care of the child, then in determining any question as to whether what was done was, by virtue of being in such exercise, a justifiable assault a court must have regard to the following factors—

(a) the nature of what was done, the reason for it and the circumstances in which it took place;

(b) its duration and frequency;

(c) any effect (whether physical or mental) which it has been shown to have had on the child;

(d) the child’s age; and

(e) the child’s personal characteristics (including, without prejudice to the generality of this paragraph, sex and state of health) at the time the thing was done."