Reforming Discipline: Child Protection Laws

Introduction

This assignment will explore the issue of corporal punishment towards the children as a method of discipline, used by parents or care givers. It shall look specifically at the Criminal Justice (Scotla nd) Act 2003, Section 51 in regard to its lack of congruence with the United Nations Convention on the Rights of the Child (UNCRC). It will examine particular Articles within the Convention in relation to this legislation and consider the United Kingdom’s place in Europe regarding our position on this. It shall draw attention to the ongoing Members Bill, Children (Equal Protection from Assault) (Scotland) Bill, which would mean children’s rights, elevated to equal status to those of adults and in line with the rest of Europe, thus in agreement with the principles of the UNCRC. The essay shall commence with a historical view of society’s perception of children, which remains prevalent in some communities today and is an influencing factor in parents’ choice of discipline methods. There will be reference to research denoting the opinions of adults and children and links to relevant literature throughout.

History of Childhood

Throughout the history, children have been denied the same rights that the children experience today. They were viewed as vulnerable dependent subjects’ property of their parents and not an independent being and therefore in no need of rights Arden (2004). Rousseau (1762) believed that, the children are to be naturally innocent and in need of protection. This was the antithesis of previous thinking of the puritan discourse; whereby childhood was a precarious time and children needed direction towards acceptable behaviour (Schnucker, 1990). The view of children as ‘becomings’ rather than ‘beings’ has remained a central tenet of society, needing to be socialised into the adults, who can fit into society (James et al, 1998, Corsaro, 2014). However, towards the end of the 1980s, a new paradigm was evolving within childhood studies, which disputed the normative perspectives of children and childhood, suggesting that the childhood is socially constructed, and children are active competent actors in society (James and Prout 1997, Mayall, 2000, Tisdall and Punch, 2012). In acknowledgement of this Freeman stated that, “there is recognition that children are persons, not property; subjects, not objects of social concern or control; participants in social processes” (2012: 32). The representation of the postmodern child is in line with children’s rights and notably the U.K.’s ratification of the UNCRC in 1991. This demonstrates a shift from parental control to responsibilities towards their children. It could be argued there is a friction between discourses of children requiring protection due to their vulnerable status and those of children’s right to autonomy. A vital challenge then, is to construct an understanding of rights which promote responsibility, trust and meaning between children and adults (Brannen and O’Brien, 1996). As Freeman states “To respect a child’s autonomy is to treat that child as a person and as a rights holder.” He continues “They are more vulnerable. They need protection. Without welfare rights -protection- they will not be in a position to exercise autonomy” (2010: 31). In order to support,

This is the UNCRC, an international agreement to ensure the protection of children’s civil, political, economic, social and cultural human rights.

Take a deeper dive into Leadership: Diverse Definitions and Insights with our additional resources.

UNCRC

The UNCRC was adopted by the General Assembly in 1989 with the UK ratifying in 1991. “The UNCRC has underpinned the promotion of children’s rights around the world since 1989” (Thomas 2011: 1).

The preamble describes “Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.” “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” The case to fulfil the UK’s obligations to the UNCRC of removing the legal defences of corporal punishment is not even to provide the children with special rights, it is simply to secure equal protection of human rights with adults.

Alderson (2000: 440) describes the ‘3 Ps’ of children’s rights within the UNCRC; “Provision of basic needs, protection against neglect and abuse and children’s participation in their families and communities.” Of particular relevance to this essay are Articles 19 and 37. Article 19 1. State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s) or any other person who has care of the child.

2. such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 37 State Parties shall ensure that:

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

Ratifying the UNCRC does not guarantee these rights that shall be respected and preserved as they are not in domestic law in Scotland, however the Committee of the UNCRC does put obligations on each State to protect them.

Defining Physical Punishment

The UNCRC Committee defines that: “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement… But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion. In the view of the Committee, corporal punishment is invariably degrading. In addition, there are other non-physical forms of punishment which are also cruel and degrading and thus incompatible with the Convention” (UNRC, n.d.). This would be unlawful assault if the victim was an adult. Currently, the children in Scotland do not share the same protection as adults, which the essay shall now expand on.

Current Scottish Legislation

The Criminal Justice (Scotland) Act 2003, Section 51, Physical Punishment of Children states: (1) Where a person claims that something done to a child was a physical punishment carried out in exercise of a parental right or 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 such exercise, a justifiable assault a court must have regard to the following factors-

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

Its duration and frequency;

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

The child’s age; and

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.

(2) The court may also have regard to such other factors as it considers appropriate in the circumstances of the case.

(3) If what was done included or consisted of-

(a) a blow to the head;

(b) shaking; or

(c) the use of an implement

The court must determine that it was not something by which was not, by virtue of being an exercise of a parental right or of a right derived as is mentioned in subsection (1), was a justifiable assault; but this subsection is without prejudice to the power of the court so to determine on whatever other grounds it thinks fit.

To expand on this are Explanatory Notes:

264. At common law parents, guardians or other persons with charge or control of children are entitled to use force for the purpose of discipling children if these actions are considered by the court to be justified as “reasonable chastisement.” Such punishment must be moderate and not inspired by vindictiveness. To secure a conviction for assault the prosecution has to demonstrate mens rea or “criminal intent” on the part of the accused, and this prevents trivial contacts or harmless warning taps being treated as am assault. 268. At common law, only certain categories of people can physically punish a child. These people are with parental responsibilities and rights in relation to the child, and anyone to whom they delegate their right to do so. In addition to this, a person with a close connection with the child, and who has care and control of the child, will also be entitled to physically punish a child. This cover, for example, the position of a child’s unmarried father or step-parent who does not have formal parental responsibilities and rights. Amendments were made to this Act following a case taken to the European Court, A v the UK, in 1998, which concerned the consistent caning of a young boy. The court found that, UK law had failed to protect him from ‘degrading punishment.’ The Act was amended to forbit some categories of assault but the defence of ‘justifiable assault’ remains. This revised piece of legislation is still discordant with the UNCRC, particularly Articles 19 and 37. As it is not part of Scottish domestic law, the Committee cannot enforce the Government to change the current law, however since the UK ratified Optional Protocol 3, a communications procedure, children are now entitled to submit complaints about specific violations of their rights under the Convention. The Committee has persistently stated the acceptance of corporal punishment towards children, that is not consistent with the Convention and has expressed concern that the UK has not provided legal protection. They have recommended a law change on several occasions, in 1995 (CRC/C/15/Add.34, 1995) on their first report, in 2002 on the second report (CRC/C/15/Add.188, 2002) and the third/fourth report in 2008 their closing review of the UK commented: “The committee is concerned at the failure of the State Party to explicitly prohibit all corporal punishment in the home and emphasizes its view that the existence of any defence in cases of corporal punishment of children does not comply with the principles and provisions of the Convention, since it would suggest that some forms of corporal punishment are acceptable” (CRC/C/GB/CO/4, 2008; paras 6, 7, 38, 40, 41 and 42). In 2016, the Concluding Observations of the fifth and most recent report, the UN Committee stated, “Prohibit as a matter of priority all corporal punishment in the family, including through the repeal of legal defences, such as ‘reasonable chastisement’” (CRC/C/GBR/CO/5, 2016).

The Scottish Government responded with:

The Scottish Government does not support ‘smacking’ as a way of disciplining children. We encourage all parents to avoid physical punishment of children. We support positive parenting through, for example, funding for family support services. In Scotland, it is illegal to punish children by shaking, hitting on the head and using an implement. In other cases, the current law requires the court to have regard to various factors when determining whether a punishment by a parent can be justified. It continues by detailing cases where parents have been convicted of an offence as a result of hitting their children (Scottish Government, 2016: 6). This makes a strong claim against ‘smacking’ however it does not state any commitment towards removing all legal defences for corporal punishment in order to fulfil its obligation. The Parliamentary Assembly of the Council of Europe have also consistently encouraged the prohibition of corporal punishment towards children. In 2004, Recommendation 1666, called for a Europe wide ban (Parliamentary Assembly, 2004). The Committee on Economic, Social and Cultural Rights has, on two occasions, encouraged the UK towards a ban. In 2002 after the State Party’s fourth report (ECOSOC, 12/1/Add.79, 2002) and in 2009 following the fifth report (ECOSOC,12/GBR/CO/5, 2009). The European Committee of Social Rights in 2005 stated corporal punishment in the home was not in agreement with human rights as within Article 17 of the European Social Charter (ECSR, 2005). In 2006 the UN Secretary General reported on their 2005 study Violence against Children stating:

“The study should mark a turning point- an end to adult justification of violence against children, whether accepted as ‘tradition’ or disguised as ‘discipline.’ There can be no compromise in challenging violence against children. Children’s uniqueness- their potential and vulnerability, their dependence on adults- makes it imperative that they have more, not less, protection from violence” (UNGA, 2006: 5).

It encouraged all the states to ban all physical punishment by 2009.

As of January 2017, 52 UN states had amended their laws to prohibit all corporal punishment towards children, in all environments including the home. The UK are only one of four countries in Europe who have not committed to the ban (Global Initiative to End All Corporal Punishment of Children, n.d). The UK were also the last European country to abolish corporal punishment in state schools, in 1982. It was not until two Scottish parents applied to the European Commission of Human Rights against the UK Government before this was successful in being a catalyst for change. The parents succeeded under the UK’s violation of Article 2 of Protocol No. 1 (P1-2) of The European Convention of Human Rights. ‘No person shall be denied the right to education.’ The children involved were denied their education on the basis of refusal to accept corporal punishment and were subsequently excluded, (Campbell and Cosans v. The United Kingdom [1982]). This case led to the ban in UK state schools, however, as is evident, thirty-seven years later children remain potentially at risk of a degree of physical punishment by their carers within the law, even since ratifying the UNCRC in 1991. The UK Government has continually suggested that, it is up to the parent’s discretion as to how they discipline their children within the family.

Family Life and Children’s Rights

The conventional view of families has been that parents know best, the adults holding the rights and social control over their children, rendering them constrained by the family institution (Alanen, 1990, Qvortrup, 1994, Montgomery, 2003). Freeman (2012: 24) argued that, children’s rights are often neglected as there is an assumption that adults “relate to children in terms of love, care and altruism” so the cause for children’s rights serves no purpose but he describes this “idealises the adult child relationship.” There is the argument of a family’s right to privacy and they should be left alone (Elshtain, 1989). Article 16 of the UNCRC states 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation. Article 18 1. State Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. However, the best interests of the child may have different interpretations to each and every parent and indeed the child themselves.

Goldstein et al (1979: 9) argued:

Guggenheim, more recently, described parents’ rights as ‘sacred’ (2005). However, as Brannen and O’Brien (1996: 30) stated that, “if we pretend the family is harmonious the result might be that its ‘marginal’ members will suffer.” Freeman (2012: 25) also argued that, “the curtain of privacy cloaks all manner of evils- the many ‘wrongs’ inflicted on children.” Federle (1994) suggested that, the children’s rights movements do not let us presume that families always know best. Roche argues: “The diversity of child rearing practices poses a challenge for children’s rights activists. It is one thing to declare children have certain rights it is quite another to persuade the different communities in our society of the rightness of this declaration especially when it can be read as undermining key beliefs and values and when the very language of rights, let alone children’s rights, is seen as inappropriate in the context of notions of family life” (1996: 33-34). He suggests we must evaluate the attitudes of our communities, “a community that accepts some assaults on children as ‘loving discipline’ has its own images of self and childhood” (Roche, 1996: 29). Newell (2001) argued that, the fact children are still subjected to physical punishment, as an assumed right or duty of parents is a telling sign of children’s lower status. According to Arden (2004), when describing the common law as viewing children as property stated the courts would have to one day consider if this is the correct attitude. The European Commission on Human Rights (2000) have emphasised rights to family life or to the freedom of religion cannot be used as relevant arguments to reject banning all corporal punishment.

The UNCRC, under Article 45a, is the only international human rights treaty to provide non-governmental organisations (NGOs) a role in overseeing its implementation. (Save the Children, n.d). There are several NGOs who are campaigning for an end to this issue and promote positive parenting strategies. The Children Are Unbeatable! Is a UK alliance of over 700 organisations who wish to see a change in UK law? They promote positive non-violent parenting, as in accordance with Article 19 of the UNCRC. They commissioned a study which revealed three quarters of parents would support a change in law if they could be sure they would not be prosecuted for trivial smacks (2000). Some people still believe this punishment teaches children to respect authority and a failure to do so results in uncontrolled disrespectful behaviour (Benjet and Kazdin, 2003) or that an occasional smack does no harm (Hain, 2000). Some children appear to accept this type of punishment as a parental role and right (Vlasis-Cicvaric et al, 2007). This indicates there is still a need for a societal change. Physical punishment is not only physically damaging there are other effects such as: lack of self-esteem, physical changes to the developing brain and body from trauma and stress, mental health issues such as anxiety and depression, poor emotional and physical development and difficulties in forming relationships (Global Initiative to End All Corporal Punishment of Children, n.d). There is also research which suggests there is a link between childhood physical punishment, violence towards peers and parents and in adult aggression (Lopez et al, 2001, Ulman and Straus, 2003, Kerr et al., 2004, Gershoff, 2002, Gershoff et al. 2012). A study commissioned by Saving the Children, focused on children’s views and experiences of smacking, some responses were:

“I think it’s just something parents’ sort of do, hit you” (seven-year-old girl). “I was just thinking that, if they changed the law then a lot of people will realise what they had done to their child and they would probably…be happy that the law was changed. If they don’t change the law they will think ‘oh well, the child doesn’t mind so we can keep on doing it.’ But if they realise children have been talking to adults about it then I think they will definitely realise that it hurts their child and they will be very upset with themselves” (Seven-year-old girl).

The children’s main messages from this project were; smacking is hitting, smacking hurts and is wrong, children respond negatively to be smacked, adults regret smacking, adults do not smack one another because they are big and know better and they care about each other (Save the Children, 2004). Another study commissioned by The Children and Young Peoples Commissioner in 2016 found more than half of the teenagers asked, felt it was not acceptable for parents to physically punish their child. 62% felt it could be harmful to children and 65% thought parents should receive help to find other methods of discipline. A report commissioned by the NSPCC Scotland, Children 1st, Barnardo’s Scotland and the Children and Young People’s Commissioner Scotland (2015) Equally Protected? found that public attitudes are changing, and physical punishment is diminishing. In 1998 61% of young adults said they had been smacked as a child compared with 43% in 2009. To support this change in attitudes and motivate non-violent parenting methods is the introduction of a Parliamentary Members Bill.

Children (Equal Protection from Assault) (Scotland) Bill

The bill was introduced by MSP John Finney in 2018 with the aim to “help bring an end to the physical punishment of children by parents, and by those caring for, or in charge of children” and “to provide children with the same protection from assault as adults, by abolishing the defence of reasonable chastisement. It does not create a new criminal offence” (Scottish Parliament, 2018: 3). The Scottish Government have agreed to support this bill. During the consultation period 75% of respondents were in favour and 25% were against it. Some supporting arguments were; children should have equal rights with adults, physical punishment is not effective and can have lasting effects, to ensure societal change there is a requirement to change the law. Some oppositional views were; smacking is not equal to assault or abuse, the current legislation is adequate, the state should not interfere with family life, physical discipline works in loving families. Dr Waiton argued “This can be seen in the confused idea of children’s rights which in essence has little to do with classical liberal ideas about rights as freedoms and is more about protection, by professionals and the state, than it is about rights for children. Children are not free, as adults are, and do not have rights” (Waiton, 2017). This view would coincide with historical thinking discussed earlier of children as property of their parents and not as active social beings and rights holders. Contrastingly, Professor Sutherland argued “Children are no longer regarded simply as the objects of protection but, rather, as people with rights” (Sutherland, 2017).

In the same period a YouGov (2017) survey proposed the question to the UK public “Do you think smacking children should or should not be banned? 25% of the Scottish public said it should and 54% said it should not, 21% were undecided.

Conclusion

This essay has examined the ongoing issue of corporal punishment towards children with relation to The Criminal Justice (Scotland) Act 2003 section 51 which bears the defence of ‘justifiable chastisement’ for certain categories of people in a child’s life, who choose to physically punish a child in their care. It has been argued that, the current status of this legislation is not in congruence with the UNCRC. The traditional perspectives of childhood and family was considered which, at times, appears entrenched in our societal attitudes surrounding the methods of discipline some parents use today. It highlighted numerous pressures placed on the UK to prohibit all corporal punishment, from the overseeing UN and European Committees in relation to the implementation of UNCRC principles and The European Convention of Human Rights. Some research reviewed a sample of opinions from the parents, children and the young people surrounding the issue, then from the respondents of the consultation of the proposed Children (Equal Protection from Assault) (Scotland) Bill. The views were diverse and although one study indicated a diminishing trend in physical punishment. There still is a way to go towards an entire societal shift in thinking. One towards children as rights bearing competent social beings who also deserve equal, if not, special protection. One step towards this would be the proposed Bill being passed, thus Scotland, would be in congruence with the UNCRC on this particular issue. If, after twenty-eight years since ratification, Scotland places children at the centre of this one political issue the UK Government may follow in our footsteps.

References

Alanen, L. (1990) Rethinking Socialisation, the family and the childhood’. In Adler, P.A., Adler, P., Mandell, N. and Cahill, S. (Eds) Sociological Studies of Child Development: A Research Manual, 3, CT, JAI Press.

Alderson, P. (2000) ‘UN Convention on the Rights of the Child: Some Common Criticisms and Suggested Responses’. Child Abuse Review Vol.9: 439-443. London. John Wiley and Sons, Ltd.

Arden, L.J. (2004) The Interpretation of UK Domestic Legislation in the Light of European Convention on Human Rights Jurisprudence. Vol. 25 (3) 165-179.

Benjet, C., Kazdin, A.E. (2003) ‘Spanking children: the controversies, findings and new directions’, Clinical Psychology Review. (23) 197-224.

Brannen, J. and O’Brien, M. (Eds) (1996) Children in Families, Research and Policy. London: Falmer Press.

Corsaro, W.A (2014) The Sociology of Childhood. 4th ed. Thousand Oaks, California: Pine Forge Press.

Elsthain, J. (1989) ‘The family, democratic politics and the question of authority’, in, G. Scarre (ed) Children, Parents and Politics. 55-71. Cambridge, Cambridge University Press.

Freeman, M. (2012) Towards a Sociology of Children’s Rights. Law and Childhood Studies. Oxford University Press.

Gershoff, E.T. (2002) Corporal Punishment by parents and associated child behaviours and experiences: a meta-analytic and theoretical review. Psychological Bulletin. 128 (4) 539-579.

Gershoff E.T. Lansford JE, Sexton HR, Davis-Kean P, Sameroff AJ (2012): Longitudinal Links Between Spanking and Children’s Externalizing Behaviors in a National Sample of White, Black, Hispanic, and Asian American Families. Child Development, 83(3), 838-843.

Guggenheim, M. (2005) What’s Wrong with Children’s Rights? Cambridge, MA: Harvard University Press.

James, A. and Prout, A. (1997) ‘A new Paradigm for the Sociology of Childhood? Provenance Promise and Problems’. In Constructing and reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood. 2nd ed. By James, A. and Prout, A. London: Falmer Press, 7-34.

James, A. Jenkins, C. and Prout, A. (1998) “The Sociological Child” from James, A. Jenkins, C. and Prout, A. Theorizing Childhood pp22-34 Cambridge, Polity.

Lopez, N.L., Bonenberger, J.L. and Schneider, H.G. (2001) ‘Parental disciplinary history, current levels of empathy, and moral reasoning in young adults’ North American Journal of Psychology (3) 193-204

Montgomery, H. (2003) ‘Childhood in time and Place’. In, M. Woodhead and H. Montgomery (eds). Understanding childhood: an interdisciplinary approach, 46-67.

Qvortrup, J. (1994) ‘Childhood Matters: An introduction’. In Childhood Matters: Social Theory, Practice and Politics. Ed. By Qvortrup, J., Bardy, M., Sgritta, G. and Wintersberger, H. Aldershot: Avebury, 1-24.

Roche, J. (1996) The Politics of Children’s Rights: In: J. Brannen and M. O’Brien (Eds) Children in Families, Research and Policy. London: Falmer Press.

Schnucker, R.V. (1990) Puritan Attitudes towards Childhood Discipline, 1550-1634, in Valerie Fildes, ed., Women as Mothers in Pre-Industrial England. London.

Thomas, N. (2011). Children’s Rights: Policy into Practice. Centre for Children and Young People Background Briefing Series, 4. Lismore: Centre for Children and Young People. Southern Cross University.

Ulman, A. and Straus, M.A. (2003) ‘Violence by children against mothers in relation to violence between parents and corporal punishment by parents’, Journal of Comparitave Family Studies. (34) 41-60.

UN Committee on the Rights of the Child (2002) CRC/C/GBR/CO/Add.188 Concluding observations on the second periodic report of the United Kingdom of Great Britain and Northern Ireland.

UN Committee on the Rights of the Child (2016) Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland.

Vlasis-Cicvaric, L., Prpic, I., Boban, M., Korotaj, Z. (2007) ‘Childrens reflections on corporal punishment’, Public Health. (121) (3) 220-222.