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Children (Equal Protection from Assault) (Scotland) Bill

Overview

This is a Members’ Bill, introduced by John Finnie MSP. The Bill aims to bring an end to the physical punishment of children, such as smacking.

Currently, under the Criminal Justice (Scotland) Act 2003, a parent – or someone looking after a child – can smack a child to discipline them. If the adult is charged with assault, they could use the defence of ‘justifiable assault’. This is also known as ‘reasonable chastisement’.

This change would take away this defence, so it’d become an offence for any adult to smack or otherwise physically discipline a child.

It’s already illegal to physically punish a child by:

  • hitting the child with an implement
  • hitting the child on the head
  • violently shaking the child

You can find out more in the Explanatory Notes document that explains the bill.

Why the Bill was created

The UN Convention on the Rights of the Child says that Member States must protect children from all forms of physical or mental violence. This includes corporal punishment.

International human rights bodies have repeatedly said that children should be protected from physical punishment.

You can find out more in the Policy Memorandum document that explains the bill.

The Bill at different stages

'Bills' are proposed laws. Members of the Scottish Parliament (MSPs) discuss them to decide if they should become law.

Here are the different versions of the Bill:

The Bill as introduced

Children (Equal Protection from Assault) (Scotland) Bill as introduced

The Member in charge of the Bill, John Finnie MSP, sent this Bill and the related documents to the Scottish Parliament.

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Government Bills

These are Bills that have been introduced by the Scottish Government. They are sometimes called 'Executive Bills'.

Most of the laws that the Scottish Parliament looks at are Government Bills.

Hybrid Bills

These Bills are suggested by the Scottish Government.

As well as having an impact on a general law, they could also have an impact on organisations' or the public's private interests.

The first Hybrid Bill was the Forth Crossing Bill.

Members' Bill

These are Bills suggested by MSPs. Every MSP can try to get 2 laws passed in the time between elections. This 5-year period is called a 'parliamentary session'.

To do this, they need other MSPs from different political parties to support their Bills.

Committee Bills

These are Bills suggested by a group of MSPs called a committee.

These are Public Bills because they will change general law.

Private Bills

These are Bills suggested by a person, group or company. They usually:

  • add to an existing law
  • change an existing law

A committee would be created to work on a Private Bill.

Becomes Law

Children (Equal Protection from Assault) (Scotland) Bill passed by a vote of 84 votes for, 29 against and 0 abstentions. It became law on 7 November 2019.

Introduced

The Member in charge of this Bill, John Finnie MSP, sends the Bill and related documents to the Parliament.

Children (Equal Protection from Assault) (Scotland) Bill as introduced 

Related information on the Bill

Scottish Parliament research on the Bill 

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee at Stage 2 about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

Agenda item 2 is the Children (Equal Protection from Assault) (Scotland) Bill. I welcome the Lord Advocate, James Wolffe QC, and Anne Marie Hicks, the national procurator fiscal for domestic abuse at the Crown Office and Procurator Fiscal Service. Good morning—you are both very welcome. I invite the Lord Advocate to make an opening statement of up to five minutes, please.

The Lord Advocate (Rt Hon James Wolffe)

Thank you, convener. I am grateful for the invitation to give evidence again to the committee, as head of the system for the investigation and prosecution of crime in Scotland, and to supplement the written evidence that you have already received from the Crown Office and Procurator Fiscal Service.

The bill that you have under consideration will simplify the law by removing from the law of assault the defence of reasonable chastisement and by repealing section 51 of the Criminal Justice (Scotland) Act 2003, which restricts the scope of that defence. It is worth being clear at the outset that, as the law stands, parents do not have an unqualified right to smack or chastise a child. Subject to the defence of reasonable chastisement, an assault by a parent on a child is a criminal offence. Allegations that a parent has assaulted their child are investigated by the police and reported to the Crown and may be, and are, prosecuted.

When considering any report of an alleged crime, the prosecutor must address two things: first, whether there is sufficient admissible, credible and reliable evidence that the accused has committed a crime known to the law of Scotland; and, secondly, if there is sufficient evidence, what action if any would be in the public interest. Those considerations apply to an allegation that a parent has assaulted their child, just as they apply in any other case.

The Scottish prosecution code sets out the factors that may, depending on the circumstances, be relevant in assessing the public interest. Those include the nature and gravity of the offence; the impact of the offence on the victim and other witnesses; the age, background and personal circumstances of the accused; the age and personal circumstances of the victim and other witnesses; the attitude of the victim; the motive for the crime; the age of the offence; mitigating circumstances; the effect of the prosecution on the accused; and the risk of further offending.

The code points out that the actions that are available to prosecutors are not limited to prosecution. They include diversion, a formal warning and various direct measures that a prosecutor may offer as an alternative to prosecution. In appropriate circumstances, it may be in the public interest to take no action. Making decisions within the framework of the Scottish prosecution code is part of the daily work of professional prosecutors. If the bill is passed, cases that are reported to the procurator fiscal will continue to be assessed by reference to the two tests that I have mentioned: whether there is sufficient evidence in law that the accused has committed a crime and, if so, what action would be in the public interest.

Repeal of the defence of reasonable chastisement would not mean that the prosecutor would ignore the special features of the relationship between parent and child. Those features will be present in any consideration of the public interest. For example, they will be present in consideration of the context and circumstances of the alleged offence, the impact on the victim, the circumstances of the accused and the effect of a prosecution on the accused and the victim. Paragraph 40 of the United Nations Convention on the Rights of the Child general comment 8, of 2006, reminds us that,

“While all reports of violence against children should be appropriately investigated”,

it does not follow that all cases that come to light should be prosecuted.

If the bill is passed, I intend to issue Lord Advocate’s guidelines to the chief constable of Police Scotland on the investigation and reporting of allegations of assaults by parents on children. Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases. When appropriate, that response may include the use of informal response by the police, recorded police warnings, diversion and other alternatives to prosecution. At the same time, prosecution will be enabled when that is properly justified by reference to the circumstances of the individual case. The approach will be informed by our responsibility to protect children from harm and by a consideration of the best interests of the child.

I am confident that if the bill is enacted, Scotland’s prosecutors will continue—as they do today—to apply sound and responsible judgment to the cases that are reported to them in a way that is consistent with the values that underpin all prosecutorial decision making: impartiality, thoroughness, integrity, sensitivity and professionalism.

The Convener

Thank you. That was very helpful. We will move to questions.

Oliver Mundell (Dumfriesshire) (Con)

I put on record my thanks to the Lord Advocate for attending the meeting. I am pleased to hear that Lord Advocate’s guidance will be issued in the event that the bill is passed.

You mentioned the legal relationship between parents and children. Would you go as far as to recognise that that relationship is different and distinct from that between two adults, even when those two adults are connected?

The Lord Advocate

One of the things that one learns as a prosecutor is that every case must be considered on its individual facts and circumstances. In all the decision making that prosecutors undertake, they must look carefully at the specifics of particular facts and circumstances. When one is dealing with a case involving an alleged assault by a parent on a child, the fact that one is dealing with a parent and a child is one of the circumstances that must be considered.

As the statistics show, we see assaults by parents on children. When a parent assaults a child and the public interest justifies it, that case will be prosecuted.

Oliver Mundell

I am asking whether it is recognised in law that the relationship between parents and children is different from the relationship between two adults. Is it correct to say that that difference is recognised?

The Lord Advocate

There are legal aspects of the relationship that are particular to that relationship, and the factual context is different from that in other relationships.

Oliver Mundell

I am interested in what responsibilities the law places on parents and what rights they can exercise in relation to their children.

The Lord Advocate

I do not think that it would be right for me to give you a general exegesis on the law of parent and child. We are in a context in which parents have responsibilities in relation to their children; they also have certain rights, with a view to promoting those responsibilities.

Prosecutors will look at what the evidence is in any given case and whether it supports the conclusion that a crime has been committed. If a crime has been committed, they will look at the particular circumstances of the case in determining what action it is appropriate to take in response.

The Convener

A couple of colleagues would like to follow up on that specific point.

Oliver Mundell

I have one more question on the same point.

Do prosecutors take parents’ statutory rights and responsibilities into consideration—which involves looking across different pieces of legislation—when they decide whether it is in the public interest to prosecute?

The Lord Advocate

The responsibilities of parents for the upbringing of their children do not justify parents committing crimes against their children.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning. I want to follow up on Oliver Mundell’s line of questioning. I think that he was trying to bottom out where in statute the relationship between parent and child is defined. During my speech in the stage 1 debate on the bill, Murdo Fraser intervened to make the point that, if parenting techniques were to be applied to another adult—for example, if an adult was grounded or had something that they valued removed as a sanction—that would be seen as abusive or inappropriate.

If a person has a duty of care for someone who is in their charge, such as that which a parent has to their child, the same could be said for the duty to an elder relative with Alzheimer’s who has a mental capacity of a three-year-old and who is looked after. Is there a legal framework for the rights and responsibilities of people who have a duty of care? If so, is it different for people who care for their children and people who care for adults who have incapacity?

The Lord Advocate

As a generality, the legal framework differs. As a prosecutor, one is looking at whether the evidence discloses a crime that is known to the law of Scotland. In this context, that crime would be an assault: an attack on the person of another with deliberate intent. If that is what the evidence discloses, what does the public interest demand by way of response? Into that latter public interest question, all the relevant facts and circumstances of any case, whether it involves a parent and child or a vulnerable older person, would be taken into consideration.

Alex Cole-Hamilton

Something that has come up time and again in our consideration of the bill at stage 1 is the slight incongruity that an adult who is responsible for a child and an adult who is responsible for an adult who has a mental age of a child work within different parameters. We would not believe for a minute that an adult could exercise the defence of reasonable chastisement if they sanctioned an adult with the mental age of three. Is that incongruous?

The Lord Advocate

It is the current state of the law. The committee is considering whether the law should be changed. Prosecutors work within the law as Parliament lays it down from time to time.

Rhoda Grant (Highlands and Islands) (Lab)

You have mentioned that parents are currently charged with assault and prosecuted for it. Is the defence of reasonable chastisement used or are those offences so severe that nobody could use the defence?

The Lord Advocate

Prosecutors already see a wide range of offences. I asked for some illustrations and have been given examples that range from cases that were ultimately dealt with by a decision to take no further action, although prosecutors were satisfied that there was an assault in law, and cases in which options other than prosecution were taken, all the way up to some of the most serious cases that we see.

It may be important to separate out the stages of investigation and prosecution. Under the current law, of course, a case of an assault on a child would require to be investigated in order to assess whether, in all the facts and circumstances, that defence could properly be made out. I do not have any statistical information on the incidence of reliance on the defence by accused persons in those cases or, indeed, in the context of prosecutorial decision making. Anne Marie Hicks may like to add something from her experience.

Anne Marie Hicks (Crown Office and Procurator Fiscal Service)

Although it is easier for us to find the cases that involve an assault on a child by a parent or someone with carer charge of a child, it is not necessarily easy from that to see the cases in which someone may have tried to assert that defence. Certainly, in quite a number of the cases that we have had, the incident occurred in the context of an assault by way of punishment for something that they perceived that the child had done wrong. In one case, someone thought the child had been lying or had come home late; in another, they thought that the child had stolen money from a purse.

Clearly, a range of cases is reported to us; some involve direct violence without a punishment element, but there are definitely others in which the account given indicates that what happened was punishment for something that it had been deemed the child had done wrong.

09:30  



Oliver Mundell

Is there any public interest in prosecuting a parent for smacking or physically punishing their child where there are no child welfare concerns and where the action clearly did not result in any lasting pain? Could tests be put into the bill or set out in guidance to make it absolutely clear to parents what you feel amounts to criminal intent?

The Lord Advocate

As I said a few moments ago, in this and in many contexts, there is no substitute for paying very close attention to the facts of particular cases. Conduct that in one context might look relatively trivial or minor might, in another, carry much more serious significance. I am not trying to be unhelpful in not being drawn on responding to particular scenarios, but what I can say is that the kinds of considerations that you have mentioned will be taken into account by prosecutors when they look at a particular case.

Going back to my opening remarks, I would point out that among the considerations and factors that prosecutors will need to consider will be the question of our responsibility to protect children from harm and a recognition of the need to take the child’s best interests into account in the round. As for the Lord Advocate’s guidelines that I am minded to issue to the chief constable and which we are currently discussing with the police, I anticipate that they will seek to articulate the considerations that the police may have regard to in deciding whether it would be necessary to report a particular case to the fiscal instead of taking other action.

Oliver Mundell

I ask this with all due respect, but when Parliament chooses to legislate for things and put them in statute, is it not normal to at least put some parameters or tests into that legislation, as we saw with the domestic abuse legislation? If you feel that there is a need for guidance or to set out some of these tests for the police, is it not better to have in the bill a broad provision relating to the best interests of the child? Would that not make more legislative sense, make things clearer for parents and the police and make the legislation easier for you to operate?

The Lord Advocate

The premise of your question is that the law of assault is unclear, but I would point out that it is applied day and daily by police officers and prosecutors. There is not a problem with the clarity of the law. At the same time, though, a case could be made that removing the defence with the qualification that currently applies would increase that clarity.

As for the framing of guidelines, I issue Lord Advocate’s guidelines to the police on a number of matters. For example, I have defined the framework within which the police may issue recorded police warnings by giving instructions as to when cases must be reported. There is therefore nothing particularly novel or unusual in giving a framework within which the police may act.

I should say that it is a feature of our law that the police are not obliged to report every crime—they report within parameters that I lay down—and prosecutors are not obliged to prosecute every crime. The responsibility of the prosecutors is to take the action that is appropriate in the public interest in any given case.

The Convener

I see that you would like to ask a further question, Mr Mundell, but a couple of people would like to ask supplementary questions. I will let you back in after that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I welcome the report that you have provided to the committee. It will be helpful to our stage 1 deliberations.

I would like to tease something out, based on what you have said in your opening statements and some of your answers to Oliver Mundell. With regard to an allegation that a child has been smacked or has had physical force used on them, what would be the difference for your team the day after the legislation came into effect compared with the day before?

The Lord Advocate

Let us start with the question of investigation. For something to happen, the matter must be brought to the attention of the police and the authorities. If an allegation is made today that a parent has assaulted a child, the police will require to investigate that. They will do that within the framework of the current legal regime. They will, in appropriate circumstances, report that to the procurator fiscal, who will assess the evidence that is available and determine whether there is evidence in law that a crime has been committed. If the procurator fiscal finds that there is, they will then ask what is in the public interest.

After the bill is passed, those processes will be the same. The one thing that will be different is that the qualified defence that is currently available to the allegation of assault will not be part of the law and, therefore, would not form part of the analysis of the legal question that police officers and, ultimately, prosecutors would have to ask themselves.

Anne Marie Hicks might have something to say, based on her experience.

Anne Marie Hicks

Obviously, as the Lord Advocate said, cases that are reported today would still be reported. The key difference is that, at the moment, that defence is available. It is only an available defence; it is not a barrier to cases being prosecuted. Section 51 of the 2003 act sets out factors for the court to consider. The court considers all of those factors and people are convicted in cases in which the circumstances merit it and the defence is not made out. In a sense, the bill simply provides clarity that that defence no longer applies in relation to the use of physical violence as a form of punishment on children. At the moment, that defence might apply or might not, depending on whether the test of the defence is made out.

Fulton MacGregor

I do not know whether you have seen the stage 1 evidence that we have received from Social Work Scotland and Police Scotland, but both those organisations said that they did not think that there would be any change to the way in which they dealt with the process after the law was passed. Do you recognise the view of the police in that regard?

Anne Marie Hicks

In relation to the child protection work that they do, the police have an obligation to investigate any concerns that are brought to their attention about a child. That happens today, it will happen tomorrow and if the bill is passed, it will happen then. If there is evidence of a crime, they will report it.

Obviously, as prosecutors, if there were an available defence of reasonable chastisement or justifiable assault, we would have to consider that as part of our considerations. If that is no longer a defence, that will not be a factor. However, the same public interest considerations would still apply, and we will continue to take account of a lot of the considerations in terms of the defence that exist at the moment, which concern the nature and the gravity of the offence and all the surrounding contexts and circumstances.

Alex Cole-Hamilton

I would like to explore the issue of Lord Advocate’s guidelines. I have come across them once before—it was in my previous professional capacity, when your predecessor issued guidelines on the criminalisation of victims of human trafficking who were coerced into committing criminal acts. On that occasion, we came up against the guidelines because they had not been adhered to by the police, and young people who were victims of trafficking had ended up in Polmont despite the guidelines from your predecessor.

With regard to the bill, when do you anticipate that you will issue guidelines? How will they be disseminated to your coppers on the ground, as it were?

The Lord Advocate

As I said, we are already in discussion with Police Scotland about the shape and parameters of guidelines. That is under active consideration. I certainly intend to issue guidelines as near as possible to the coming into force of the legislation. I issue guidelines to the chief constable, and it is then his responsibility to disseminate the instructions to his officers on the ground. I do not know whether Anne Marie Hicks wants to add anything.

Anne Marie Hicks

We will now have to work with the police on agreeing the content of any guidelines, and then it will be a matter for the police to incorporate them.

Alex Cole-Hamilton

Do you adapt guidelines over time if you ascertain that they are not working properly, or there have been too many prosecutions, or too few? In such cases, do you move guidelines or change them in any way?

The Lord Advocate

I have the power under statute to issue instructions to the chief constable in relation to the reporting of crime, and these matters are kept under review. I do not recognise the idea of there being too many or too few prosecutions. That is not the way that we think about the job that we require to do.

Anne Marie Hicks

A good example is the Lord Advocate’s issued guidelines on liberation. They were amended in the light of the Criminal Justice (Scotland) Act 2016, which introduced new provisions on liberation on undertaking and investigative liberation. The guidelines were updated to take account of that. That is the normal practice that we would adopt.

Alison Harris (Central Scotland) (Con)

I have been listening with interest this morning, and I would like to ask you a couple of questions. During the stage 1 debate, Maree Todd said:

“I assure members that our intention is not to criminalise parents”.—[Official Report, 28 May 2019; c 15.]

Does that intention have any legal force? Would it be, in your view, fair to say that that is a foreseeable outcome and consequence of the bill?

The Lord Advocate

From a prosecutorial point of view, the law is whatever Parliament enacts. We look to the law as it is in common law and in statute.

It is perhaps important to keep in mind that, at present, it is a crime for a parent to assault a child. As I said in my introduction, the law currently treats as criminal parents who assault their children. A qualified defence of reasonable chastisement is currently available, which will no longer be available to parents who assault their children if the bill is passed.

Alison Harris

Can I try to drill down into that? I appreciate that there is the reasonable chastisement element. Does the bill not have potential to criminalise loving and caring parents who use a smack on the back of the hand or the bottom, or a light tap? Does the bill not have potential, ultimately, to criminalise them, because that is going to be deemed to be assault? You are removing the reasonable chastisement clause.

The Lord Advocate

It is not a defence to an allegation of assault that it was motivated by love. The whole facts and circumstances would be taken into account in the context of considering what action was appropriate in the public interest if there was sufficient evidence that a crime had been committed. There is a range of circumstances in which crimes are committed and people offer benign motives. The motivation is not, of itself, a defence, although it might be highly relevant to the decision and how the law responds.

09:45  



The Convener

You are down to ask questions about guidelines and guidance.

Alison Harris

That was part of it. I appreciate that the Lord Advocate mentioned that guidelines would be brought in.

Anne Marie Hicks

I understand that the bill’s intention is to remove the defence so that parents can no longer claim that it is acceptable to use physical violence as a form of corporal punishment of children. The policy driver of the bill is to say that that is no longer acceptable and to change attitudes.

I have read the policy memorandum and my team has been involved in the on-going discussions. We have watched the development of the policy with interest, so I understand that it is not being introduced with a view to increasing the number of people in court; it is about saying that physical violence should not be used as a form of punishment of children.

At its simplest, the policy is about removing the defence, but the Lord Advocate is saying that the use of physical violence as a form of punishment can already be a form of assault. It is today and it would be if the bill is passed; it is just that there would no longer be any statutory defence that could be claimed. The law is being simplified, but we are not setting up a whole new framework. At the moment, people can smack their children and say that that is absolutely fine in every circumstance, but that is not the case under the current law.

Oliver Mundell

You danced around the issue a little bit there. Is it not correct that, when a defence is successfully established, that is, in effect, saying that a crime has not been committed?

The Lord Advocate

Yes.

Oliver Mundell

So, by removing the defence, we are creating a new area of behaviour that is criminal. We heard from the Law Society of Scotland, from a professor of law at the University of Dundee and from several law agents that the bill will create a new category of behaviour that is criminal.

The Lord Advocate

Yes. One has to be clear about that. If a defence in law is removed, by definition, there will be conduct for which the defence can currently be successfully invoked for which it could no longer be successfully invoked.

Oliver Mundell

Do you think that, as a matter of policy, it is a good idea to have legislation on the statute books that we do not intend to enforce in all circumstances, most circumstances or some circumstances?

The Lord Advocate

It is a feature of our legal system across the board that, when there is sufficient evidence that a crime has been committed, prosecutors assess what is the appropriate response in the public interest. We see that in all areas of criminality.

In our system, we do not prosecute every case that is reported to us, and we are not obliged to do so. There is a range of possible responses, which include diversion from prosecution, a range of direct measures and, ultimately, the option of taking no action. The same principles are applied by prosecutors every day across the wide spectrum of cases that are reported to them.

Alex Cole-Hamilton

One of the concerns that critics of the bill voice is that it will result in the criminalisation of hundreds of parents for normal parenting behaviour. That presupposes that the legal defence is being used hundreds of times. Is that accurate?

The Lord Advocate

I have no statistical way of answering that question. I do not have any data that would allow me to give a figure. It is unknown, in the true sense, whether the bill would result in an increase in cases being reported. New legislation, with the attendant publicity around it, might result in an increase in reporting, partly because attitudes change and people are sensitised to behaviour that they might not otherwise have reported. At the same time, it might have an impact in changing behaviours in another direction. The question of whether more cases would be reported remains to be seen.

Anne Marie Hicks

The international experience of where legislation to ban the physical punishment of children has been introduced elsewhere suggests that we would not see significant increases in prosecution, but it remains to be seen what the effect would be on the number of cases that are reported.

If I can give a parallel example from my experience of dealing with domestic abuse, when the law changes and there is greater public awareness of behaviours that are not acceptable, members of the public might involve the authorities more. We have certainly seen that in the context of domestic abuse—neighbours and other people have picked up the phone to the police to report things that, 20 or 30 years ago, might have been overlooked as just domestic matters and were maybe not reported.

We have seen that happen in some of our cases, when members of the public have intervened and called the police when something has happened in public. There might be an increase in reporting if there is greater public awareness of the issue. However, it has been made really clear that the policy intent of the bill is not all about prosecution or the criminal law; it is about saying, “This is not an acceptable way to chastise your children.”

The Convener

A couple of members are signalling that they have brief supplementaries.

Oliver Mundell

Mine is not a supplementary.

Fulton MacGregor

There has been a lot of talk during our consideration of the bill about a possible increase in the criminalisation of parents. The evidence does not point to that, although I know that it is difficult for you to give a view on that. Do you agree that our biggest challenge from a prosecution point of view is prosecuting really terrible offences against children rather than worrying about whether the bill would lead to an increase in prosecutions of parents?

The Lord Advocate

Prosecutors deal with a wide range of offending, from the most serious to the other end of the scale. That is why, as I indicated in my opening statement, we are focused on taking action that is appropriate and proportionate to the particular circumstances of the case that comes before the prosecutor. We can all assess the relative gravity and seriousness of the different types of criminality that we have to deal with, and prosecutors respond in a way that reflects that.

Rhoda Grant

You have mentioned a number of times that, when decisions are taken about whether to prosecute, you look at what would be in the public interest. I want to push you a wee bit on where that falls. What would you consider to be in the public interest and what would you consider not to be in the public interest? Can you give us examples to illustrate that?

The Lord Advocate

The Scottish prosecution code, which is a publicly available document, sets out factors that, depending on the circumstances, will inform the consideration of the public interest. Unsurprisingly, it includes

“The nature and gravity of the offence”

and

“The impact of the offence on the victim”.

Harm, which Mr Mundell asked about, is a consideration that would come into play in that regard.

Other factors that are considered are

“The age, background and personal circumstances of the accused”

and of the victim, and

“The motive for the crime”,

which relates to the issue that Ms Harris raised.

The code sets out more detail under each of the public interest factors that are identified. Those factors will apply in relation to any report of any crime. Prosecutors are well used to applying them, and they do so currently when cases involving alleged assaults by parents on children are brought to their attention.

Anne Marie Hicks

In preparation for today’s meeting, we looked at a few of the cases from last year in which we took no action or took action other than prosecution. One case involved an assault by a mother on her 10-year-old daughter who came home late and had not answered her calls. The assault was a punishment for what was deemed to be bad behaviour. The accused had no previous convictions and there were mental health issues. We had information about social work involvement with the family. Once we had full information on the background, we decided that social work diversion was appropriate, as it would enable social work to work with the family on some of the issues.

We had other cases with similar reported behaviour towards children, in which it was felt that diversion was not necessary, because a framework of support was already in place. We were satisfied that the police were working with social work and that there would be no public interest in prosecuting.

Another case involved an assault on a nine-year-old that arose after a family argument one morning, at a time of great pressure and stress. The parent was working and there was a lot of pressure on the family at the time. Again, we received further information about other assistance that the family were getting through social work and other family members, and we were satisfied that no action needed to be taken.

That is the kind of information that we would look to the police to give us. As well as getting information about the incident, we would want to find out about the background and would want to know whether the parent had ever behaved in that way before or whether the incident took place in the context of domestic abuse. Sadly—this is not surprising—quite a number of such cases take place in that environment. As with other crimes, we would want to look at all the circumstances, including any pressures that the parent was under and any factors that were relevant to them. In determining what is in the public interest, we do not look through the narrow lens of the individual act; we take account of the full context and circumstances of the behaviour.

The Lord Advocate

Particularly at that end of the spectrum, when one is considering whether the public interest is best served by some form of diversion or support rather than a prosecutorial option, as Anne Marie Hicks has said, that is one of the considerations.

At the same time, we have a string of examples of cases in which the balance went the other way: when the circumstances and the particular nature of the case were looked at, as well as the full background and context of the act, a decision was made to prosecute the case. We have a number of examples of those cases, too, but, as Anne Marie Hicks has said, the important point is that, as part of their professional practice, prosecutors routinely consider the appropriate course to take to respond to a particular report of an alleged crime, assuming that there is sufficient evidence to justify action. In this context—as in others—we will look at all the relevant factors.

Rhoda Grant

Given child protection guidance and regulation, I assume that, if a case came to be prosecuted, social work would already be involved. Is your decision influenced by whether or not social workers have taken action? For example, if they thought that the child was in danger, they might have taken them into care and removed them from the family home, or they might be working with the family. Do you look closely at such things before you decide how to act?

10:00  



Anne Marie Hicks

We would want to know what involvement social work might have had, if any, and whether any on-going concerns or previous behaviour had been reported. Those are relevant to the context. One of the factors that we consider is the risk of reoffending, which is a clear public interest consideration. We would know about the involvement of social work, but we would not think, “Social work has done this, so we will do that.” We would look at the full circumstances of the incident.

There are cases in which the police properly involve social work, because they are required to do so, and social work will take a view and say, for example, “We are content as far as the incident is concerned, and we see no need for on-going work with the family.” We have seen that in a number of cases. We just want a full picture, so that we understand the situation.

Oliver Mundell

Going back to earlier comments, I note that, in our system, the parameters of the common-law crime of assault are in effect set by case law. Is there any issue with the fact that, because of this particular defence, there is perhaps a sparsity of case law on cases involving minor or mild physical force, as such cases have probably not been tested or fully explored? Should we consider that issue?

The Lord Advocate

I am not aware of any particular practical difficulties in the application of the law.

Anne Marie Hicks

You are right in the sense that the case law on reasonable chastisement tends to predate the 2003 act, but even if the purpose of the bill is to say that that is no longer a defence and to remove it, the case law on assault will still apply. A sheriff will have to consider the evidence and decide whether what happened constitutes a crime and whether that has been proved beyond reasonable doubt. Those considerations will still apply. If a sheriff listens to what has happened and says that it does not constitute an assault in law, there will not be a conviction.

Oliver Mundell

Do you recognise the possibility that, in the absence of any thresholds in the bill, the courts might come up with their own new tests? In effect, they could say that your decision to prosecute was not, in their view, in the public interest.

Anne Marie Hicks

I do not think that they could come up with a new test in law. As we have occasionally seen, it is always open to the courts to criticise a decision to prosecute. It is obviously for them to determine on the basis of the evidence whether a crime has been committed, and if they believe that it has, whether that has been proved beyond reasonable doubt. As the decision maker in a summary case, they would have to make that decision.

Moreover, if the courts did not think that it had been appropriate to prosecute the case, they could reflect that in sentencing, which is also a matter for them. I do not think that there will be an array of new tests around the law of assault. We already prosecute cases of parental chastisement, which amounts to assault in the courts, so they are used to dealing with that.

Oliver Mundell

The common law continues to evolve and develop, and a number of things that this Parliament now takes pride in, such as law regarding relations between married people, have developed through case law; they were not developed through statute. Surely it is possible that common law will continue to develop in this area, and that the courts might refine what they consider to be parental assault of a child in the context of the parental rights and responsibilities in other statutes.

The Lord Advocate

It would be wrong for me to pre-empt the natural development of the law, but the legal test for an assault is straightforward. It is an attack on the person of another with the relevant mens rea, or mental state for committing a crime, and courts are used to applying those tests in a range of circumstances.

As Anne Marie Hicks has said, there will be cases where a court concludes that, on the basis of the evidence that it has heard, there was no crime. That happens across the board. Prosecutors assess cases and take them to court, and on occasion the evidence does not support the charge. Indeed, as Anne Marie has said, there are sometimes cases where, even though a crime has been committed, the court is critical of the case having been brought by the prosecutor.

It is our responsibility to take the cases that we consider it right to take in the public interest, but sheriffs are entitled to comment. At the end of the day, a sheriff will reflect their assessment of the case in any sentence that is imposed.

Alex Cole-Hamilton

I wonder whether Oliver Mundell’s concerns about the lack of case law and thresholds on this issue go some way towards answering my earlier question about scale. There is not, as he has suggested, a great deal to go on; the legal defence is not regularly exercised, and courts are not often asked to sit in judgment of loving physical chastisement, which critics of the bill would describe as being reasonable. It is not something that comes up in court very often. Oliver Mundell might be worried about the absence of case law, but it strikes me that the matter just does not come up very much.

Anne Marie Hicks

In our written evidence, we provide some data on the number of cases that we have had. We looked at a three-month period from three years ago and increased that to create an estimate for a 12-month period, and we estimated that the number of cases prosecuted was fewer than 500 for the whole year, including assaults on children to injury, no injury and severe injury. On any reading, the numbers are small. That is within a framework where we have the statutory defence, but even when we take that into account, the numbers are small. We will have to wait and see whether there is any increase.

Alex Cole-Hamilton

Do you have data on how many of those people were acquitted on the basis of the defence of reasonable punishment?

Anne Marie Hicks

No. To get that, we would have to go through every individual case. We can pull cases based on the charge and see that they involved a parent and that the victim was a child, but we could not go into that sort of detail without a thorough manual research exercise.

Alex Cole-Hamilton

I understand.

The Convener

Okay. Everyone looks content. I thank the witnesses very much for their evidence this morning.

The committee’s next meeting will be on Thursday 13 June, when we will take evidence from Engender on its shadow report on the United Nations Convention on the Elimination of all Forms of Discrimination Against Women.

10:08 Meeting continued in private until 10:43.  



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Second meeting transcript

The Convener (Ruth Maguire)

Good morning and welcome to the sixth meeting in 2019 of the Equalities and Human Rights Committee. Please ensure that mobile devices are switched to silent.

I welcome Gordon Lindhurst MSP and John Finnie MSP to the meeting.

Agenda item 1 is our second oral evidence session on the Children (Equal Protection from Assault) (Scotland) Bill. I welcome our first panel: Bruce Adamson, Children and Young People’s Commissioner for Scotland; Joanna Barrett, policy and public affairs manager, Barnardo’s Scotland, representing Barnardo’s, Children 1st and NSPCC Scotland; Tríona Lenihan, advocacy and communications manager, Global Initiative to End All Corporal Punishment of Children; and Martin Canavan, policy and participation officer at Aberlour Child Care Trust.

I will start things off. Do you support the bill’s aim of preventing the physical punishment of children in Scotland?

Bruce Adamson (Children and Young People’s Commissioner Scotland)

Yes. As Children and Young People’s Commissioner for Scotland, my role is to promote and safeguard the rights of children and young people, and the bill’s aim is one of the most important legislative things that we can do right now to secure children’s rights.

Assaulting a child for the purpose of punishment should never be legal. It is at odds with the values that we hold in Scotland. The United Nations Convention on the Rights of the Child is clear that children should grow up in a family environment of happiness, love and understanding, and that, although parents have the responsibility to ensure that children grow up in that environment, the state has an obligation to put in place clear protections. Article 19 of the convention says clearly that the state must put in place legislative protections to ensure that children are protected from all forms of violence and, alongside that, all the guidance, support and education to allow parents to fulfil that role. The bill meets both those aims. It ensures that the state puts in place that guidance, support and education, and it corrects the issue that we have at present where the assault of children is allowable for the purpose of physical punishment.

As the committee is aware, the issue has been a regular feature of concern about Scotland from the international community—the United Nations, the Council of Europe and the European Union. I welcome John Finnie’s human rights leadership on the matter and the committee’s role as a human rights guarantor to ensure that children in Scotland have their rights respected in relation to their physical integrity.

Joanna Barrett (Barnardo’s Scotland, Children 1st and NSPCC Scotland)

As you said, convener, I am here to represent three organisations—NSPCC Scotland, Barnardo’s Scotland and Children 1st. We have been working together for a long time to advocate the change and we, too, commend John Finnie’s leadership in bringing the bill before Parliament. It is our strong opinion that the law as it stands has no place in a society that claims to be progressive and wants to do the best for its children, so we strongly advocate the bill.

Tríona Lenihan (Global Initiative to End All Corporal Punishment of Children)

As our name probably suggests, we strongly support the aims of the bill as a means of realising children’s rights to dignity and bodily integrity and to health, development and education, and as a means of reducing violence in families and society.

Martin Canavan (Aberlour Child Care Trust)

Thank you for inviting us along to give evidence this morning. My answer is yes, Aberlour fully supports the bill and the aim of ensuring that children have the same protection from assault as adults through the prohibition of physical punishment. We believe that all physical punishment of children should be prohibited by law and that children require more, not less, protection from violence than adults do. There naturally exists an imbalance of power in adult/child relationships, and as a result it is critical that children are provided with as much protection in law as possible.

Aberlour has a proud history of advocating against the physical punishment of children while promoting positive alternatives to physical punishment. Parenting support is a key focus of the work that we do with families every day, helping parents to become confident and secure in their parenting. We believe that the focus of a prohibition on physical punishment should be on not the criminalisation of parents, but the protection of children, not only by legislating but by promoting positive alternatives to physical punishment. We need to support parents who struggle to feel that they can deliver positive parenting and help them to become confident in their parenting.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning. Thank you very much for coming to see us.

Given that Aberlour Child Care Trust is represented, I say for the record that I worked with the trust as head of policy for eight years before I was elected to the Parliament.

I want to address the perceived tension between adults’ rights and children’s rights. Dr Waiton, who gave evidence to the committee last week, suggested that there is no such thing as children’s rights. There are protections, but children are in the care of their parents. Submissions against the bill have cited a tension between the right to family life and article 19 of the convention. Do the panellists agree with Dr Waiton’s assertion that there is no such thing as children’s rights? Bruce Adamson has said that article 19 states the clear international expectation that children have the right to be free from violence. Is there a conflicting right in any treaty in international law that could be interpreted as giving parents the right to physically punish their children?

Bruce Adamson

The position that children do not have rights is completely untenable. We recently celebrated the 70th anniversary of the United Nations Universal Declaration of Human Rights, and the committee had a human rights takeover day on 10 December. Article 1 of the declaration states:

“All human beings are born free and equal in dignity and rights.”

The international community has been very clear that children have not only rights, but additional rights. Those have been set out in the preamble to the declaration, which identifies childhood as a time of special care and protection, and in successive international treaties at the UN, Council of Europe and EU levels—most notably in the United Nations Convention on the Rights of the Child, which is 30 years old this year and which I have cited. The convention recognises that, because of the particular vulnerability related to children’s physical immaturity, additional rights and protections are necessary. The idea that children do not have rights is therefore simply untenable in any country in the world. Every UN member state signed up to that at the beginning of the basics of our human rights framework, so I cannot understand that argument.

You mentioned the perception of a difficulty in balancing the human rights of parents and the human rights of children. The United Nations Convention on the Rights of the Child, which every UN member state bar one, along with a number of non-UN member states, has signed up to, was drafted very clearly. The family environment and the role of parents are absolutely essential. I am talking about how the state can support parents and families to ensure that children can access all their rights in relation to health, education and thriving. Article 5 of the convention sets out very clearly that the state shall respect the rights and duties of parents; it also sets out a number of ways in which that should be done. Article 18 recognises the “primary responsibility” that parents have and says that the state has to provide additional support to parents. The state needs to support families in order to deliver the rights of children and young people. There is absolutely no right to use physical violence as part of respect for private and family life.

Article 8 of the European convention on human rights, which is a Council of Europe convention, talks about

“respect for private and family life”.

The state can interfere with that only in certain circumstances. The European Court of Human Rights and all the UN committees have been very clear that there is no right to use violence in relation to respect for family life.

Joanna Barrett

We totally agree with the commissioner that it is pretty ludicrous to argue that children do not have rights, especially in front of the Equalities and Human Rights Committee. Children’s rights are realised through their adults. It is we who are the guardians, almost, of children’s human rights. Rather than children’s and parents’ rights being in conflict, they are actually totally complementary. I see my role as a parent as ensuring that I do my best to realise my children’s rights. The job of adults, Parliament and society is to realise children’s rights.

Alex Cole-Hamilton

Dr Waiton, who gave evidence against the bill last week, suggested that the right to family life is about autonomy and that parents should have autonomy to parent their children as they see fit. Where are the restrictions around that autonomy defined? Are they simply interpreted from the notional right to family life?

Bruce Adamson

They are defined and interpreted through a number of sources. There are the core conventions. Article 19 of the Convention on the Rights of the Child, which is 30 years old, makes it clear that parents’ role is to protect children from

“all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse”.

The Committee on the Rights of the Child issues general comments, which are an authoritative interpretation of the convention, and it has expanded on the convention significantly, making it clear and unequivocal—there is no ambiguity—that children’s right to be protected from violence means that all forms of corporal punishment in all settings must be abolished by law, and that campaigns to support that must also be in place. The UN committee has been clear about that through the text of the convention and in its general comments relating to the convention.

The Parliamentary Assembly of the Council of Europe has said very much the same thing. In 2008, it said that the right to respect for private and family life needs to be interpreted within the context of protecting children from all forms of violence. In fact, almost all countries in Europe, as well as a significant number—more than 50—across the world, interpret the right in that way. The idea is that there must be a comprehensive legal framework to protect children from all forms of violence in all settings and that the right to respect for family life needs to be interpreted within that.

The European Court of Human Rights has been very good at dealing with the issue, and our domestic courts can address it as well. It is interesting that all the leading cases in relation to physical punishment of children have been against the United Kingdom, on issues ranging from corporal punishment in the criminal setting to abolishing corporal punishment in schools, focusing on independent schools, and to restricting the use of implements and other things in the home, which led to the most recent change in Scotland.

In my view, the current position in Scotland is in breach of the European standard and there is a real risk that, if the bill is not passed urgently, we could end up with a child again having to go through the courts to seek redress. The current position is not compliant with the European convention on human rights or the broader framework. The courts are very good at interpreting the issue, and the limits on respect for private and family life are set within the clear guidance on protecting children from violence.

Alex Cole-Hamilton

Before I move on to my next question, perhaps Tríona Lenihan or Martin Canavan wants to come in.

Martin Canavan

We are an organisation that has children’s rights at the heart of the work that we do every day with children and young people and families, and we are committed to supporting, promoting and protecting children’s rights. Therefore, to us, the notion that children do not have rights is a nonsense—it is ludicrous—and we reject any evidence that the committee has heard thus far that makes such a suggestion.

Tríona Lenihan

I strongly agree with everything that has been said. We have talked a lot about promoting children’s rights and protecting children, but the change would have a positive impact on families as a whole. The positive changes in behaviour and social norms that could come about would benefit parents and children in families. The feedback and anecdotal evidence from parents who have participated in positive parenting courses and similar things is that the knock-on effect on the whole family is of great benefit.

Alex Cole-Hamilton

I will move on to the arguments that are deployed by those who oppose the bill. They say that there is empirical evidence to show that things such as back-up smacking can be an effective parental control and discipline tool. My anxiety about that is that it presupposes that everybody who uses smacking does so in a proportionate and controlled manner. When the Parliament legislated on the issue in 2003, the restrictions that it put on smacking were that there should be no head shots, no shaking and no use of implements—that was it. Have those parameters created a landscape in which parents understand that they have to retain control when using smacking, or has that legislation led to more confusion?

Joanna Barrett

It has led to a lot of confusion. If you ask a parent on the street whether smacking is banned, they will probably say that it already is. There is not a lot of clarity, and legal change would bring absolute clarity for parents, professionals seeking to support parents and, ultimately, children, on how they can expect to be treated.

09:15  



I am uncomfortable talking about back-up smacking. I am not an expert on the empirical evidence, but, in the report that we—Children 1st, NSPCC Scotland and Barnardo’s Scotland—commissioned, Dr Heilmann was really clear that there is no evidence that physical punishment is a useful discipline tool or that it does children any good. What is the impact on the child of back-up smacking? Do they think that it is okay, because they know that it is a back-up smack that is used as a last resort? That is not how a child receives a form of physical punishment. They know that they have been hit—they do not give it an academic label.

With back-up smacking and the threat of smacking, we draw an invisible line in our mind about what is and is not acceptable, and the law allows us to draw that line. The problem is that everybody around this table would have a different invisible line for the punishment that would or would not be okay for a child to receive. For each person, the line would change as circumstances change, and it would sometimes be completely blurred. It is totally unjustifiable that our law allows that. It should be absolutely clear to parents, professionals and children how children should be treated with regard to children’s physical dignity.

That opens up a different conversation about how we manage children’s behaviour. All the evidence from the growing up in Scotland study shows that there is a peak between the ages of three and five in the amount of smacking used, so we are not talking about children with whom we can rationalise or who have an understanding of how to regulate their emotions. They are very young children who do not have the cerebral capacity for that. As parents, we need to teach them how to emotionally regulate, given that—ostensibly—we have the capacity to regulate our own emotions. We will not model that behaviour for our children if our response to frustration is to lash out.

Alex Cole-Hamilton

In this debate, some reasonable people are suggesting that physical punishment is sometimes in the best interests of the child—for example, if they are about to put their hand in a fire or run out into traffic. In the 54 countries where physical punishment has already been abolished, has there been a decline in children’s welfare due to people not being able to restrain their children in that way?

Joanna Barrett

There is absolutely no evidence of increased prosecutions. I cannot attest to there being increased incidence of children being knocked down, electrocuted or anything like that.

The idea that the bill would not let parents stop children running in front of a car, touching a hot iron or touching a plug is often used, so it is incumbent on us to be absolutely clear about what the bill seeks to do. It is my understanding that such action is not assault and we are here to talk about removing a defence for assault. The purpose of such action is to stop a child coming to immediate harm.

If we did not mess with the current law, the existing defence would not even come into play, because it talks specifically about physical punishment. Me pulling my child out of the way of a car is not an act of physical punishment; it is an act of protection. It is a red herring to focus on such things as examples of what the bill seeks to do.

We have a responsibility. We talk about public opinion perhaps not being with the bill, so, in order to garner good public opinion, we need to be really clear about what the bill will and will not do.

Martin Canavan

I return to Joanna Barrett’s original point about clarity. For the parents we work with every day—and for parents in the general public, out in the street—what the law currently does and does not allow with regard to physical punishment is not clear. A consequence of passing the bill would be that absolute clarity could be ensured, because all physical punishment, of any description, would be prohibited by law. That clarity would be important in ensuring that parents who required support were provided with it. It would also ensure that parents who otherwise might not seek out advice about or assistance with parenting issues or concerns would be encouraged to seek out such support.

Like Joanna, I have often heard cited the examples of a child running out into traffic or otherwise putting themselves in harm’s way, and I echo what she said about stopping a child doing that not being the same as physically punishing them.

It is also important to recognise that we might have to do the same thing to stop an adult with an impairment—dementia, for example—walking out into traffic. However, we would not then physically punish them afterwards to reprimand them or show them that they had done something that they should not have done. The same consideration applies to children as applies to adults.

Children learn from the example that we set and from the behaviours that we model—that is how they learn as they grow up. I think that even the slightest smack shows a child that hitting people is okay. By prohibiting physical punishment, we will prevent that and ensure that children grow up learning that hitting others is simply not acceptable.

Annie Wells (Glasgow) (Con)

We know from opinion polls and the individual submissions that we have received that public opinion is not with the bill. How can we bring the public along with us on this journey? Is it a question of information and education rather than legislation?

Bruce Adamson

That is an important point. We must make clear the point that we were just making. What we are talking about is assault: a deliberate attack on another person with an evil intent, which is to cause physical injury or fear of personal injury. That is something that is proscribed by law, unless you are the parent or carer of a child and you are doing it for the purpose of punishment. That is all that we are talking about. We are not talking about using physical contact to keep a child safe. That is not an assault, and it would not meet the test of it being for the purpose of punishment.

The international evidence is interesting. It shows that, in most countries that have taken this step through law—indeed, in all of them, I think—public opinion was not with the legislation. That is because, generally, even though this is not the test that we are seeking to bring in, the opinion polls asked, “Should we criminalise parents who smack children?”

There is great evidence internationally, in particular from New Zealand, that, over time, people’s opinions change, once they see that the approach works. Generally, what is required is human rights leadership, which uses the legislation to deliver the culture change. That culture change takes quite a long time. In New Zealand, for example, there was a citizens-initiated referendum to try to reverse the change. Again, the majority of the people who took part in that referendum said that they thought that the law should be repealed. The Government said no, because a human rights principle was involved. That position has proved to be right, because public opinion has changed. It took quite a long time and happened fairly slowly but, without that legislation, there would not have been that culture change.

You need the legislation to deliver the culture change—we know that to be true. In that regard, this issue could be seen in the same way as seat belts in cars, drink driving and smoking in pubs. On such issues, you need to lead with the legislation in order to deliver the culture change. It is not the prosecutions that change the culture; it is the clear indication in the law about what is expected. What we have seen internationally is that there is not a massive increase in the number of prosecutions—the associated prosecutions are extremely rare. Also, you do not see an instant change public opinion; what you see is a gradual change in public opinion and a culture change in relation to violence.

Oliver Mundell (Dumfriesshire) (Con)

I have a supplementary question, specifically for Bruce Adamson. You set out the tests for the common-law offence of assault. Do you think that parents who smack their children show “an evil intent”?

Bruce Adamson

“Evil intent” has been interpreted by the courts as involving an intention to cause physical injury and fear of injury.

Oliver Mundell

Do you think that that is the intention of parents when they smack their children?

Bruce Adamson

That is the way in which the criminal law would approach it. If that is not the intention, the issue would not be a matter for criminal law. Criminal law is concerned only with—

Oliver Mundell

They have to want to injure their child, or cause them an injury.

Bruce Adamson

That must be their intention. That needs to be set in the context of physical punishment. Something that is not for the purpose of punishment—grabbing or restraining—would not be a criminal law concern.

There is an obligation to provide education and guidance, and all the evidence shows that positive parenting is much more effective.

Tríona Lenihan

This comes down to definitions. We use definitions, as Bruce Adamson said, to differentiate between a punitive action—an assault or a physical punishment—and a protective action. The United Nations Committee on the Rights of the Child uses the same approach. It defines physical or corporal punishment as a physical action that has the intent

“to cause some degree of pain or discomfort, however light.”

Therefore, it is not that the parent is being malicious and has a negative motivation but that their action has that intent.

Oliver Mundell

I fully accept that definitions are very important, but we have to recognise that assault is a common-law offence in Scotland, so the issue is how the courts interpret an action and its intention. I just wonder whether the ordinary or reasonable person would think that parents set out with an intention to cause injury to their child. It is a question of interpretation. Would you be confident that the court would see such an action as intending to cause injury?

Bruce Adamson

I think that the courts are very good at interpreting such matters. The common-law offence of assault applies to adults, and cases do not generally get to court. I cannot really foresee that the small, physical interventions that you are talking about would end up in court.

The bill is about setting very clear standards that any form of physical violence for the purpose of punishment—using pain as a tool of punishment—is wrong. In order for criminal law to be engaged, the standard would be in relation to assault, which would require the intention that I described.

Oliver Mundell

Do you recognise the vagaries of the law and the fact that, if there is not a more carefully defined definition, a grey area could be created?

Bruce Adamson

That is certainly not the experience anywhere else; neither is it the experience in Scotland—we have a long history of the police, the procurators fiscal and the courts being able to interpret our laws. This is not a new offence; the courts are already very aware of it.

The Convener

I am conscious that that was a supplementary, Oliver, and that we cut across Annie Wells. Apologies for that, Annie.

Annie Wells

Does anyone else have anything to add in response to my question about how we bring the public on this journey?

Joanna Barrett

We need to accept that this is an emotive issue—it speaks to how we were parented and how we parent. I think that it is fair to say that there is no universal consensus on the issue. As the commissioner said, although most of the places around the world that have introduced similar legislation faced public opposition, they did so because it was the right thing to do.

A ComRes poll, in which more than 1,000 people were surveyed about smacking, is often cited. If the results are disaggregated by age, there is a huge disparity between older people, who are more likely not to support the bill, and younger people, who overwhelmingly support it.

We need to look at the views of children and young people. The Scottish Youth Parliament has carried out work—it has provided it to us—that shows overwhelming statements from tens of thousands of young people who agree that we need to introduce these measures. We are seeing a decline in the use of physical punishment anyway, so younger people are more likely to support legislation. They are the parents of the present and the future. Although we know that the proposal does not have universal support, it is important to acknowledge that there is increasing support from younger generations.

On your question about whether this issue should be dealt with through public education or legislation, it has to be both—all the evidence says that a change in the law alone will not achieve the behavioural and cultural change that we want. We cannot change the law without telling people about the issue. There need to be sustained public information and awareness campaigns, not just a one-off campaign. Equally, those public education campaigns alone will not achieve the change that we want.

09:30  



Martin Canavan

I agree with everything that Bruce Adamson and Joanna Barrett have said. The legislation is just one part of a much wider approach, which should include a public information campaign and awareness raising, so that information is available to parents, families, children and young people through multiple channels and formats.

A third element is to ensure the provision of accessible support, information and advice for all parents who require it. That would ensure that parents who feel that they need help or support with their parenting, particularly in the light of the bill, can be confident in finding the help, support and advice that they need. There are three elements to the approach, but legislating is key.

The role that you, committee members, and your colleagues in Parliament have as legislators and policy makers is to legislate in the best interests of your constituents and wider society. That work should be done from an informed, evidence-based point of view. Although it is important to be aware of and to take note of public opinion, consideration of public opinion should not outweigh a strong and robust evidence base. In relation to the bill, there is a strong and robust evidence base in favour of prohibiting the physical punishment of children.

Tríona Lenihan

The Government and the Parliament are responsible for protecting the human rights of all their citizens, including children. Protecting the rights of a minority sometimes requires a top-down approach, particularly when the policy is evidence based and supported by guidance from international rights bodies and international health and medical bodies, including the World Health Organization.

It is worth noting that most parents do not want to use physical punishment. They do not like doing it and they do not feel good after having done it. The UNICEF multiple indicator cluster surveys programme covers a range of issues, including violent discipline. The surveys that it has conducted in countries all over the world have consistently found that the use of corporal punishment is far higher than the number of parents and carers who believe that such punishment is necessary to raise a child properly. That finding is encouraging, because it implies that parents would use alternative methods if they were more aware of them and were more comfortable and confident in using them. Therefore, there is a responsibility to meet those needs and to fill that gap in the law, and the bill would go a long way towards doing that, particularly through providing clarity.

Clarity in law is essential in providing the foundation for all the work on education and parent support. Without clarity, there will be ambiguity and confusion, because often people assume that if the law allows something, it must be okay. Following a similar change in law in Ireland, one of the greatest benefits has been the clarity that has been provided to the police, social services and everyone who works with and for families. If it is clear that physical punishment is never acceptable, people can then talk about the positive things that they can do.

Mary Fee (West Scotland) (Lab)

I want to ask about the published evidence that the physical punishment of children can cause long-term harm. Such punishment has been linked to further childhood aggression, adult aggression and antisocial behaviour. Do you agree with that? If so, why do you have that view?

Tríona Lenihan

I agree. A huge body of evidence supports that view. The global initiative prepared a summary of the research in 2016. At that point, more than 250 studies showed associations between experience of corporal punishment as a child and the wide range of negative health and behavioural outcomes that you mentioned. More research has been published since then, so an enormous body of evidence supports that view, and there is no comparable body of evidence against it.

Bruce Adamson

Last week, the committee received strong evidence from academics who are authors of some of the papers and reviews in this area. The evidence base on the negative impacts of the early experience of violence and physical punishment is growing and is very consistent.

On Tuesday, the special representative to the secretary general on violence against children, Marta Santos Pais, gave her report to the UN Human Rights Council and highlighted a number of other reports. Therefore, the issue was discussed earlier this week at the Human Rights Council. Marta Santos Pais was clear about the fact that she welcomed the Scottish bill, and she said that she thought that the evidence was now so strong that all countries needed to introduce such legislation as a matter of urgency. She also linked the issue to the sustainable development goals—goal 16, in particular—and to health and development. She said that such legislation would play a strong role in the lifelong development of children and young people and that experiencing violence clearly affected their ability to access rights across the board.

Mary Fee

Do any of the other panel members want to comment?

Joanna Barrett

I will speak for the panel—I am willing to be corrected if I am wrong. Nobody is suggesting that the link in question is causal—that because someone has been physically punished, they will experience X, Y or Z. Among all the nuances, that can be lost. We are not suggesting for a minute that, because someone has experienced physical punishment, they will go on to do X, Y or Z. However, so strong and consistent is the link that the evidence shows that it undermines what we have on the statute book and makes the proposed change really urgent.

Martin Canavan

I agree with what others have said. There is a significant and robust evidence base. As Bruce Adamson mentioned, last week the committee heard from some academics who have published papers and conducted studies in this area. They are far more qualified to comment on what the long-term outcomes are than I am.

In the work that we do on a daily basis in providing family and parenting support, we see the direct impact of that work and what can be achieved as a consequence of it. All the work that we have done with families over the years has shown that, by addressing at as early a stage as possible underlying issues for parents, such as mental health and other factors that might affect their parenting capacity, we can improve not only their capacity but their relationships with their children. We do that by role modelling, demonstrating good behaviours, providing opportunities for stay and play, and building routines such as sleep routines in an effective way. All those things contribute to the ability of parents to build and develop positive relationships with their children. We know what the outcomes are—we have heard a great deal of evidence on the impact of such work in building positive relationships and improving children’s wellbeing in the long term. We can say with some confidence that we see the impact of the work that we do from day to day on the families we work with.

Mary Fee

Are you aware of any specific equality groups that are more likely to be subjected to physical punishment? I am thinking of groups such as children with additional support needs or physical disabilities.

Tríona Lenihan

There is research that shows that children with disabilities can be more vulnerable to violence generally, including physical punishment. Beyond that, there are differences in how physical punishment can be applied. It can sometimes be used for different reasons or in a different way for boys and girls.

Bruce Adamson

There are studies that look at areas such as gender and disability, which I am not an expert on, but what we are looking for and what is required is a universal protection, whereby no child should be subjected to physical violence. Some children, especially those who have additional communication needs, are at a heightened risk of assault. I am not an expert on the studies that suggest that they are more likely to be assaulted, but they are at heightened risk and have less ability to express themselves or to seek justice if they are subjected to physical violence.

That links strongly to the work that my office has done on restraint and seclusion in educational settings, which shows that it is much more likely to happen to children with communication additional support needs. However, that is not what we are discussing in the context of this bill. It is a universal principle, so the key thing is that no child should be subject to physical violence. The protections that should be put in place for particular children also need to be looked at, but I am not an expert on the evidence around equalities issues.

Mary Fee

Does the panel think that restraint should be covered by the bill? As I said when I raised the issue last week, I have seen restraint being used and it can be shocking and alarming to see it used on a young person. There is a fine line between using restraint to prevent someone from causing further harm to themselves or others and using it to punish or harm them. It is more commonly used in residential care settings, but it could be used by carers of a young person with complex behavioural needs. I am interested in the panel’s views on whether the bill could be used to protect young people from the use of restraint.

Bruce Adamson

I am particularly concerned about that broader issue. I recently conducted an investigation into the use of restraint and seclusion in educational settings. The report was laid before Parliament last year, and I would welcome the opportunity to come and speak to the committee about that and its recommendations. The evidence from Who Cares? Scotland and the conversations that we had with care-experienced young people raised restraint as a significant concern that needs to be addressed but, in my view, the bill is not the place for that. That is partly because someone within a residential or educational setting would not be able to rely on the defence at the moment, even if they were exercising parental responsibilities. They would be excluded because the bill is not about that.

It would be better to look at restraint and seclusion separately, and at what changes to legislation, policy and practice are needed. A number of those are in my report and the work from Who Cares? Scotland. It is an issue that urgently needs to be addressed, but it does not sit within the context of this bill. That specifically looks at whether the use of assault for the purpose of physical punishment can be justified when exercised by parents or carers on children. I strongly agree that we need to take action on restraint and seclusion, but this bill is not the place to do that.

Mary Fee

Do any other panel members want to comment?

The Convener

I am conscious that time is marching on. It would be good to hear any different opinions, but if you want to agree we will move on to the next question.

Martin Canavan

I absolutely agree, but I also want to say that, as providers of residential childcare where restraint is significant in the work that we do with looked-after children, we would also welcome the opportunity to come and speak to the committee about it at some future point. It is an important issue, but I do not think that this bill is the right place to address it.

Oliver Mundell

In last week’s evidence, it was suggested that the bill will not lead to an increase in the number of prosecutions or fines. Is that correct?

Bruce Adamson

The experience in other countries has been that such increases have been nominal. In New Zealand, for example, there were, I think, eight cases over the 10-year period, and some of those would have fallen foul of the law in Scotland anyway. A very small number of cases needed intervention through prosecution in the courts. Intervention that fell short of prosecution tended to involve not fines or criminal diversion but additional support being put in place.

I foresee a need for increased resource to be put into support services for families, and that is set out in the financial memorandum. The bill will allow us to put more support in place, but I do not foresee a significant increase in prosecution or in other criminal responses to behaviour that is not covered by the current legislation.

09:45  



Oliver Mundell

Are the rest of the panel of the same view? You do not need to give a long answer if that is the case.

Tríona Lenihan

I will give a specific example from Sweden. A study was done in 2000 that examined the impact of the ban there. It found that the ban had been effective in providing opportunities for increased early intervention and early identification of children and families who were at risk of violence, as well as providing increased support to families. The number of interventions that required out-of-home care declined by a third and there were a range of other positive benefits.

Oliver Mundell

Is the bill drafted in the correct way to legislate in this area, or is there an opportunity to do something more comprehensive that sets out our aspirations with more detail and clarity?

Joanna Barrett

We totally support how the bill is drafted. Correct me if I am wrong, commissioner, but, under our international human rights obligations, we have to remove any permission for violence against children from our legislation. We therefore need to remove a defence for assault from the common law.

We are not alone in relying on the common law. Ireland made the same change in 2014 or 2015, and the Welsh Government is seeking to make the same change—its legislation very much mirrors ours. Culture change takes a while, so, if we pass the bill, we might revisit the issue at a different point and decide that more needs to be done. However, given where we are right now, this is absolutely the repeal that we need to make.

Oliver Mundell

Do you think that the bill amounts to a ban on smacking?

Joanna Barrett

We need to be absolutely clear that no offence is being created in the bill; it is removing the defence for assault. If a parent is charged with assault and the Crown Office has deemed that there is sufficient evidence and that it is in the public interest to prosecute that parent, there should be no relying on a defence that the young person they ostensibly assaulted is a child. No offence is being created in the bill—we need to be absolutely clear about that.

Oliver Mundell

So, this is not a ban on smacking—is that correct?

Joanna Barrett

It is hoped that the impact of the bill will be a decline in the use of physical punishment as a result of behaviour change. In black-and-white terms, though, that is not what the bill is doing; it is repealing a defence for assault.

Oliver Mundell

Is the bill ambitious enough, Mr Adamson, or should we be setting out in law our intention to make violence against children an offence?

Bruce Adamson

I agree with everything that Joanna Barrett has just said. That was a very good explanation of the position.

It is clear that the bill is drafted—very simply and correctly—to address the failure in our law to protect children’s rights in relation to the current defence. There are lots of other things that we need to do to make sure that children live free from violence, a lot of which are to do with education. However, removing that defence to make sure that there is a comprehensive protection is the correct approach and it is generally the approach that is being taken. We know what assault means under the law as it stands, and that is what we need to address. We could overcomplicate matters if we took a different approach.

Oliver Mundell

Thank you.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

The concerns that have been expressed by my colleagues to my right—both at today’s evidence session and at last week’s meeting—are about the possible criminalisation of parents for what they would currently deem to be good parenting. I do not share that concern, as it happens, and I think that some of the evidence that we have heard today has been quite powerful.

As a former social worker—the panel members will all have experience in that field—I know that it is quite difficult to secure prosecutions for quite serious and heinous crimes against children. I therefore do not think that that is the purpose of the bill or that it will lead to some sort of criminalisation of parents for what would be seen as a lesser offence than what I have alluded to. Do you think that the bill will help not only to clarify the existing law, as you have said, but to protect children from a whole range of things that could happen to them?

Tríona Lenihan

This speaks to the status of the child and how they are viewed by society. I think that the bill could mark a turning point and a significant step away from the dominant view of children as possessions and the property of parents towards the more progressive view of children as being entitled to a full range of rights. In countries that have implemented similar legislation, we have seen a positive knock-on effect of children’s rights in general being advanced. For example, in Austria, where a ban was introduced in 1989, a survey that was conducted 25 years later, in 2014, put statements that had been put to people in 1977 to people over 15 years old. Besides showing a significant decrease in support for physical punishment, the survey showed a significant decrease in support—from 64 per cent in 1977, I think, to about 16 per cent in 2014—for the view that children should remain silent when an adult is speaking. That illustrates how this kind of approach can lead to a shift in attitudes towards, and views on, children and their rights to participate, to be heard and so on.

Joanna Barrett

We agree that the bill will lead to better protection of children. Because of the invisible line that, as I said earlier, we have drawn in our legislation, children are at increased risk of harm. The bill would provide absolute clarity for professionals who are seeking to help families. After all, this is tricky territory. If a health visitor goes into a home and the parent asks, “Is this okay?”, they cannot really answer that question unequivocally; at the moment, it is a value judgment, and the response is usually, “Well, not really, but ...”. The bill would provide absolute clarity and would, I suppose, draw a solid line between what is and is not acceptable.

I would also point to the overwhelming evidence from other countries that have changed their legislation in this way of a significant decrease in injurious and severe child maltreatment. I know that that is not the bill’s principal purpose, but it shows that there is a correlation between creating absolute clarity and reducing the incidence of more serious abuse.

Fulton MacGregor

My questions have been answered very well, convener. In the interests of time, I am happy to leave things there.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Thank you for your evidence so far. It has been mentioned a few times that in the countries that have introduced such legislation, there has been no increase in the number of prosecutions. However, concern has been expressed that there might be an increased financial burden on public services. Is such a concern well founded, or is it unreasonable?

Bruce Adamson

The evidence from other countries is that, although the legislation might lead to additional costs, it is actually a very good economic decision. Early intervention works, and, although we might expect an increase in the number of early interventions with families, we know that the economic benefit of such an approach is exponentially greater than the amount of money that is spent on it.

We know that early intervention services work, and we know that there is a need to put more money into them. If the bill helps in that respect, it will be a useful additional element. The international evidence shows that those kinds of early interventions work very well and make good economic sense, as well as respecting the rights of children and young people. Ensuring, through early intervention, that families and parents get the positive parenting support that they need delivers much better results, which can be seen in the health and education systems. It is important, therefore, to point out that any additional cost would be money well spent.

Gail Ross

You would class any money that had to be spent as a result of the bill as preventative spend.

Bruce Adamson

Yes.

Gail Ross

Does anyone else wish to comment?

Martin Canavan

I agree with everything that Bruce Adamson has said about what we know about early support. Any resource that, as a result of the bill, goes into providing additional support could be clearly demonstrated to be preventative spend. We know that early support works and that working with families who need additional help, support, advice and information as early as possible has positive outcomes and prevents far worse consequences for families and children. Working with families as early as possible is part of the early intervention agenda and fits firmly into our current childcare policy framework, getting it right for every child. Any additional support that is required as a result of the bill could be seen in that context.

Gail Ross

I want to have a wee look at the financial memorandum. We have heard that the Scottish Government’s estimate of £20,000 for marketing might not be sufficient. I know that you have provided written evidence on that aspect. We are talking about preventative spend, awareness raising, positive parenting courses and everything else that goes along with the bill. In one of my other committees, I heard this week that a six-week campaign for awareness raising on a change in the law could cost up to £500,000. Do you think that the financial memorandum is accurate? If not, what needs to be added to it, and where should that money come from? Bruce Adamson said that the bill crosses a lot more portfolios than the one that we are looking at here.

Bruce Adamson

The key issue for me is that the educative work should be done anyway, regardless of the bill. Article 19.2 of the United Nations Convention on the Rights of the Child says that the state has an obligation to do all of that promotion and support anyway. Even if the bill was not progressing, that work should be done—it should be provided for in the budget. Linking that work to the financial memorandum is perhaps not the right way of looking at it. The work is an obligation on the Government anyway, so we should be seeing that spend allocated.

A rights-based approach to budgeting would have highlighted very clearly that more work needs to be done. We need to put more money into this issue, although that is not necessarily a direct criticism of the financial memorandum, because what we are talking about is not a consequential change—it is something that we should have been doing anyway, because we know that it works and because it is a requirement.

Joanna Barrett

I am not a marketeer, so I have no idea how much such things cost. I would say only that, if the law changes, that work must happen and should be sustained. As I said earlier, messages about positive parenting should be consistent and not a one-off resulting from a change in the law.

We have a range of resources already. Every parent receives “Ready Steady Baby!”, and there is a toddler edition. Health visitors visit families a minimum of eight times, I think. These messages should be communicated through our existing resources as much as through any additional resources.

Martin Canavan

I agree. I am not an expert on marketing or the costs of marketing, but I think that the evidence you heard last week compared how much was spent on previous public information campaigns—for example, on the smoking ban—with what is outlined in the financial memorandum. As Joanna Barrett said, it is sensible to utilise existing resources, with help to achieve public information and public messaging.

We should not decide not to implement everything that needs to be implemented to achieve what the bill hopes to achieve simply because it is seen as being unaffordable or costing too much. As far as I am concerned, protecting children should never be unaffordable, and I do not see that as an argument for not passing the bill.

The Convener

We have a couple of minutes left for this panel. Gordon, do you have a question?

Gordon Lindhurst (Lothian) (Con)

I have a quick question for Bruce Adamson. Are you familiar with the Non-Fatal Offences Against the Person Act 1997, from Ireland?

Bruce Adamson

No.

Gordon Lindhurst

You suggested that what we are doing is the same as what they did in Ireland, but assault is defined in that act, so they did not fall back on the common law there. Are you saying that you have not looked at the law in Ireland?

Bruce Adamson

That was not my suggestion—it was not me who said that.

Gordon Lindhurst

Everyone seems to agree that the law should be clear.

Bruce Adamson

Yes. The law should certainly be clear. Is there a suggestion that the current law of assault in Scotland is not clear? This seems to be an argument about—

Gordon Lindhurst

The common law is unclear. Can you name one country where the issue has been dealt with without an act of Parliament defining the circumstances? New Zealand dealt with the issue in section 59 of the Crimes Act 1961, where the matter is set out in detail.

10:00  



Bruce Adamson

In New Zealand, we codified the criminal law. If Mr Lindhurst is making an argument about codifying the criminal law generally, we could look at that and consider how to make the common law clearer. However, I am confused about the suggestion that the current criminal system and the common law are not clear. The point does not seem to be about the specific offence that we are considering; it seems to be an argument that we should codify all common law in relation to criminal matters. This matter is no different from any other element of the common law, and in Scotland we are used to dealing with that.

Gordon Lindhurst

But the common law provides defences, such as that of self-defence for an adult who assaults another adult. Therefore, if we are changing the defence, we are changing the common law. Other countries, including common law jurisdictions such as New Zealand and Ireland, did it by setting the matter out clearly in statute.

Bruce Adamson

But they did that when they codified the common law. As you say, in New Zealand, that happened in 1961; indeed, it also happened previously to that, as New Zealand has always had that tradition. The change that was made through the Crimes (Substituted Section 59) Amendment Act 2007 did not codify the law in relation to assault, as that had already been done.

Gordon Lindhurst

Would the bill be a good place to start to make the law clear in that way, as it is in other jurisdictions?

Bruce Adamson

If we are going to look at codifying the whole criminal law, that would be a matter for the Scottish Law Commission and others—

Gordon Lindhurst

No—I mean just with regard to this offence.

The Convener

Mr Lindhurst, as a courtesy, visiting members get to question the panel, but you need to do it in the same manner as everyone else, so ask your questions through the chair, please.

Gordon Lindhurst

Thank you, convener.

Bruce Adamson

If this discussion is about providing additional clarity to the common law by codifying it more generally, that would be a massive piece of work. I do not think that there is an issue with a lack of clarity in the common law—we are used to understanding it. Choosing one specific change and opening that up into codifying the criminal law is not the right approach.

Some of the things in section 59 of the New Zealand act that Mr Lindhurst mentioned have questionable legal effect. For example, on discretion in relation to prosecution, which was considered, the first three words in section 59(4) are “To avoid doubt”. That phrase was put in as a political compromise just to reaffirm existing practice. Generally, in New Zealand, although we have the codification of some criminal law, that is only to the same extent as we already understand the common law in Scotland—it sets out exactly the same tests that we already know and understand, which are applied every day by courts in Scotland.

The Convener

Mr Finnie, do you wish to ask any questions?

John Finnie (Highlands and Islands) (Green)

I have no questions, convener.

The Convener

I thank the panel members for their evidence and suspend the meeting briefly to allow the panel to change.

10:03 Meeting suspended.  



10:10 On resuming—  



The Convener

Our second panel is here. You are all very welcome. Amy Johnson is policy officer at Zero Tolerance, Alison Davis is chief executive officer at Saheliya, Maureen Phillip is senior family support director at PAMIS, Nora Uhrig is senior associate at the Equality and Human Rights Commission, and Lucy Chetty, who is headteacher at New Struan school, is here on behalf of Scottish Autism.

I will ask you the same question that I asked the first panel. Do you support the bill’s aim to stop physical punishment of children in Scotland?

Lucy Chetty (Scottish Autism)

Yes—we support the bill’s aim. Bruce Adamson talked about the awareness that it will bring of support for families. The bill represents a proactive approach to enabling that. Anything that raises awareness of that agenda is positive.

Alison Davis (Saheliya)

We agree with and fully support the spirit of the proposed legislation, but we are concerned about the possible impacts of implementation.

Maureen Phillip (PAMIS)

PAMIS very much supports the bill. Quite frankly, for our families, it will be a lifeline.

Nora Uhrig (Equality and Human Rights Commission)

The Equality and Human Rights Commission supports the bill. We are of the opinion that children deserve more protection than adults, not just equal protection, from assault.

Amy Johnson (Zero Tolerance)

Good morning and thank you for the opportunity to give evidence today. We warmly welcome the bill—especially its aim to end physical punishment of children. We believe that it will send out positive messages on respect, responsible use of authority, healthy relationships and the tackling of violence within the family and society as a whole.

Zero Tolerance works to prevent violence against women and girls, and our core position is that everybody has the right to live without fear of violence. Physical punishment of children is part of a wider continuum of violence within our society, so ending justification for and normalisation of physical punishment will help to reinforce the attitude that violence is never okay in Scotland.

The Convener

Thank you.

Alex Cole-Hamilton

Good morning. I will try to be brief in order to let others in. I will ask the same question that I asked the previous panel. We have heard conflicting views on whether there exists in the international law, treaties and conventions to which this state is signatory a tension between children’s rights and family rights, or the right to family life. Do you recognise that tension? Do children have rights? If there is a conflicting right that allows parents to physically punish their children, are you aware of where that exists in international law?

Nora Uhrig

I would just repeat everything that Bruce Adamson said about that. It is very clear that children have rights, not just at an international level in the UN conventions—particularly the Convention on the Rights of the Child—but at European level. We recognise those rights in Scotland, as well.

On a tension with other rights, particularly the right to family life, international human rights law is clear about the best interests of the child. People have the right to family life, but that right does not include a right to use physical punishment.

Alison Davis

Saheliya works with women who have no points of contact with the mainstream community. They have very different views on parenting and very different cultural contexts for family life. There is very rarely understanding that children have any human rights.

We have worked with 1,180 women in the past year, in 14 different languages, and 763 of those women were from communities in which female genital mutilation takes place and are survivors themselves. We are talking about there being no understanding that a thing that is as severe as FGM—never mind smacking a child—is illegal.

10:15  



We deal with people with severe multiple trauma who are not being supported or looked after. We see quite a punitive approach being taken by social work, and health visitors frequently do not know what to do. Saheliya works with women who are unable to access mainstream services due to having a lack of language skills, limited confidence and mental health problems, and who have experienced very severe trauma. I believe that, if we support them and get the approach right for the most vulnerable people, we will be getting it right for everybody.

Saheliya fully endorses the spirit of the bill, but we are concerned about the implementation without some kind of support for parenting, especially in relation to young women who are left alone with children. A lot of the children with whom Saheliya Glasgow is involved are the result of rape. Trauma creates barriers to positive parenting, and the mix is dangerous for children. To take a punitive approach to such families—specifically to the mothers—does not work. It criminalises women and puts pressure on women who are already suffering and have already survived violence.

We need to provide a lot more support. A figure of £20,000 was mentioned earlier. We would need that to provide one month of language support to reach only the women with whom we work and provide wraparound parenting support. When resources allow it, we provide parenting support, and we do so in six languages. We provide other support in 14 languages. However, support has to be provided in a concerted way. The Home Office could perhaps be persuaded to hand over some of the increasing fees that it is gathering from asylum-seeking and migrant communities to provide that learning and support in a culturally aware and trauma-informed way.

Lucy Chetty

Scottish Autism would always advocate the rights of the child, but wraparound support for families is vital. Often, families with whom we work are at the point of crisis, and the level of stress that the parents are feeling contributes to how well they are able to cope and to manage, and to how resilient they are.

Alex Cole-Hamilton

We have also had a discussion of whether the current laws around smacking or physical punishment of any kind are clear. The last time we legislated on the issue was in 2003, which is when the limitations that I described to the previous panel—no head shots, shaking or use of implements—were brought in.

From the experience of your organisations, are families and parents aware of where the lines are drawn? Are those lines sufficient? Do they lend themselves to deployment of physical punishment, with control, in every case?

Alison Davis

No, people are not aware, because there are no points of integration with the families with whom we work. They do not know what to do. They are told that smacking is wrong and that they cannot smack children here, but they do not know what else to do. That means that children end up not being parented. Parents are frightened about what will happen. Children are hit—very hard—and then told not to tell anybody, which is a double abuse.

Amy Johnson

Our position is that the combination of the 2003 restrictions and the grey areas about what is justifiable mean that there are two points of ambiguity. That means that the situation is difficult for parents and families to navigate, and it makes it difficult for children to understand what is okay.

We would expand the idea to society as a whole. The idea that some forms of assault, especially of the most vulnerable people, are justifiable, and that pain can be inflicted as a form of behaviour management, sends a confusing message and sits in opposition to a lot of other messages about combating violence against women in society through the equally safe approach, for example. There is a lack of clarity for families and children, and for society, more generally.

Maureen Phillip

I would like to backtrack a little bit and answer the question about the right to family life, because it is relevant. The people whom I support look after children who have profound and multiple learning disabilities—they are non-verbal and often have significant healthcare needs. Their families use the word “fight” a lot: they have a right to family life without having to fight every day. I spend my life supporting families whose children have been subjected to horrific assaults, physical and sexual.

We have fantastic polices in child protection and we have the getting it right for every child approach in schools, but abuse is still happening. Therefore, the bill is a lifeline, because what the children in those families are subjected to is assault. They regularly say to me that the current legislation is not working in practice, because—I will be very honest—they say that they need a sign above the door saying, “Just help yourself”. That is quite profound.

The bill is a lifeline, because it will mean that those families will have the right to family life. If someone says that a child has been assaulted, somebody will now need to listen, because of the bill.

Annie Wells

I will ask the same question that I asked the previous panel. From opinion polls and written submissions to the committee, we know that the general public are not for the bill. How do we bring the general public with us on this journey? Assault—if that is what it is—of any child is wrong, but parents increasingly see the bill as banning smacking. How do we show parents that that is not what the bill is about?

Amy Johnson

Fundamentally, most parents want to do what is best for their child and for their family, but they do not have the time to read up on equal protection or Dr Heilmann’s work. We need to make that information accessible for parents and we need to share what we have learned about the harm that corporal punishment causes. We know that the balance of evidence is hugely towards the view that such punishment is not effective and is very harmful. A lot of work needs to be done through public campaigns and other work involving conversations and engaging with the public.

We know that children’s opinions on the issue are very different from the opinions of others. Joanna Barrett touched on that during the previous session. Of the young people who responded to the 2016 Scottish Youth Parliament consultation, 82 per cent agreed that all physical assault against children should be illegal. There is a big role for children to play, and their voices must be heard.

Changes in opinion are already happening. Over time, we are slowly changing our position on the issue. The growing up in Scotland study and an Ipsos MORI poll found that a declining number of parents say that they have smacked their child, and that the younger population group is more in favour of abandoning smacking altogether.

Our position is that opinions are changing: there is a great opportunity in Scotland for legislation to reflect that. We know that smacking does not work, just as we now know that smoking is harmful. More public awareness of the issue is needed, and children’s voices should be at the centre of that.

Lucy Chetty

Annie Wells asked a very good question. A lot of change has been achieved through trust and relationship building with families. The focus needs to be on the work that people are doing with individual families to help parents to understand better ways of managing and coping.

Annie Wells

The financial memorandum says that £20,000 will be required to be spent for the bill to succeed—

The Convener

You are going down Gail Ross’s line of questioning.

Annie Wells

I am sorry.

Mary Fee

I want to ask about specific equalities groups that might be more at risk. Are the witnesses aware of specific groups of children who are more likely to be subjected to physical punishment? I would be interested to hear more about the people whom Lucy Chetty and Maureen Phillip work with. Do other panel members have evidence that they can give us?

Lucy Chetty

Autistic young people are more emotionally vulnerable. They are also more fragile. In that sense, they are more susceptible to physical punishment. I will qualify that by saying that my experience of working with families of young people who experience high levels of distress is that the parents’ response is mostly about trying to keep everybody safe in that situation.

The language on punishment really does not feature so frequently in the families whom we work with and support. Our work is about coping—it is about putting in place the support to help families to cope better. On how autistic young people perceive punishment and their ability to join cause and effect, because they see the world in a different way, they do not necessarily understand why something happens in a certain way. That is important when considering autistic people.

Maureen Phillip

I echo that. I slightly disagree with the Children and Young People’s Commissioner Scotland about the bill and its relationship to restraint and seclusion. I have witnessed a child being dragged along beside a swimming pool under the umbrella term “restraint”. To me that is assault, not restraint.

If seclusion and restraint stand alone, maybe things will not change, although perhaps policy work could be carried out. I do not see it as a separate issue. If we are to have inclusion, why would we exclude children with profound and multiple learning disabilities and autism from the bill? If we want inclusion across society, surely that group should not be considered separately. The bill should work with other policies. As I said, we have great child protection policies in place, but restraint and seclusion still happen. I would like to see partnership with other policies, not separation from it.

Nora Uhrig

International studies show that disabled children are more likely to be punished physically, but we do not have clear evidence to show that that is a trend in Scotland. There is a similar presumption about certain ethnic minorities, with US studies in particular showing that ethnic minorities are more likely to use physical punishment on their children. However, a Joseph Rowntree Foundation study in 2006 found that that was not the case in the United Kingdom.

It is important to note—as Alison Davis, Maureen Phillip and Lucy Chetty have mentioned—that change needs support and an awareness campaign. You have to include everybody—in particular, vulnerable children and parents. It is about creating societal change. The bill and the awareness campaign that accompanies it will be key to changing societal perceptions and making the position on punishment very clear. That will help with the issue that Maureen Phillip has just mentioned, because people will have a better idea of what is and is not acceptable.

Maureen Phillip

A little bit more research could be carried out on the evidence base and the figures. Families who have reported through the child protection route often feel that they are just going through a process with no outcome, which is not recorded. There is underrecording—more cases are happening than is recorded.

Nora Uhrig

In our submission to the committee, we call for more research and monitoring. Again, an awareness-raising campaign would help. With that information, we could see where support services are needed more, or what a campaign needs to focus on. As Joanna Barrett from the previous panel said, the campaign must be sustained.

10:30  



The Convener

Fulton MacGregor wants to ask a brief supplementary.

Fulton MacGregor

Good morning. You have mentioned child protection. Currently, when a child goes to school and says that he or she has been hit by a parent, a process is initiated. How will the bill, if passed, and the removal of the defence of justifiable assault, impact on that process?

Maureen Phillip

That is a big question.

Fulton MacGregor

I am sorry; it was not meant to be.

Maureen Phillip

I am not sure that I can answer that. I hope that if the outcome of a child protection process was not favourable, and the family still felt that an assault had taken place, the provisions in the bill could come into play. My honest answer is that I do not really know what the impact would be.

Mary Fee

When you talk about “the family” feeling

“that an assault had taken place”,

are you talking about a young person in a care or school setting?

Maureen Phillip

Yes.

Mary Fee

I just wanted clarification of that. Are you so concerned about restraint because it is used in school settings?

Maureen Phillip

Yes.

Mary Fee

Does Alison Davies have anything to add about the groups of families that Saheliya works with? I know that, culturally, they are quite different from the families whom others on the panel represent.

Alison Davis

Yes—there are very different cultural approaches to parenting, and there are no routes through which to learn about other approaches. A lot of people say that that is a racist approach. I could say that I was hit a lot, but that does not make my father a monster; it just means that he comes from a different time. In the same way, we see people who are newly arrived from different geographical places. Attitudes have changed.

We spend a lot of time supporting women to learn about human rights and responsibilities and about child protection, but that is also for their own safety and to ensure that they understand that their experience of domestic abuse is against the law. As Amy Johnson has said, that is really important. If we are saying that women should be free from violence in the home—I am old enough to remember men being supported for saying, “It’s none of your business if I beat my wife”—and that they should be supported to learn about their right to safety, it is not a huge leap to say that their children also have the right to physical and emotional wellbeing. A lot more work has to be done on that.

Mary Fee

Does the panel agree that the support services that will be put in place or enhanced, if the bill is passed, will be crucial? We cannot have just a standard support or education service for families. The support must vary according to the type of family and their circumstances.

Alison Davis

Absolutely—and health visitors are struggling with that at the moment. They see very good and committed parents who have experienced severe trauma trying to do their best in extremely difficult circumstances, but they are still using the kind of parenting that they—and I—were brought up with. The only way the health visitors can help mothers to learn—which is what we do—is through an interpreter, who might be sitting there, saying, “This is racist. Why are you talking to a white person about this? Don’t tell them anything.” We have great concerns about the role of interpreting, the lack of support for first languages and the lack of trauma-informed support. Health visitors are therefore in a quandary.

Social workers, too, are frequently a bit perplexed about what to do: we see very varied responses from them. Many of them are fantastic, but many are not and take a very punitive approach that could, in some cases, be called institutional racism.

Mary Fee

Thank you.

Oliver Mundell

I was very interested by Maureen Phillip’s evidence. Are you concerned by comments that were made last week and today that changing the legislation will not lead to a significant increase in prosecutions?

Maureen Phillip

I imagine that the change will bring about an increase in prosecutions within the group that I work with. I say that because, already, I have supported a group of families whose cases have gone to court and who do not know how long those cases will sit at court before they are heard. It could be several years. Had the law that we are discussing been in place, I think that the process would have been far quicker and less stressful for them. Their children have been subjected to assault and, in my opinion, have suffered trauma since the day it happened. That trauma is with them while their cases sit waiting to be heard.

The Convener

Can you just clarify whether the families you are talking about are taking someone else to court or are being prosecuted for assault?

Maureen Phillip

The families are not being prosecuted. I am sorry. The children have all been subjected to abuse in care or education settings, not in the family.

Oliver Mundell

Do the families with whom you work trust the Government and the state when it comes to parenting and their family life? Do you think that they find that the law is helpful? Is there sometimes a breakdown in trust between them and health workers and social workers?

Lucy Chetty

The families with whom we work have often had to fight hard to get the support that they have. They feel that they have to be a very loud voice in a large system that can be difficult to navigate. That perhaps has an impact on whether they view agencies as supportive or obstructive. There is multi-agency support for all the families with whom we work. Sometimes it works very well and they feel that the support is helpful and useful. However, sometimes families feel that they are fighting for things that they need.

Oliver Mundell

Do you think that, when parents use physical punishment, they always have an evil intent or an intention to cause injury, or is the situation more complicated than that?

Alison Davis

With regard to your previous question, I would say that, especially when the women whom we support begin their journey with us, they have huge fear about social work, the police and the state. Refugees have to prove a well-founded fear of persecution in order to get their asylum application recognised. They have come from environments in which they should not trust anybody—certainly not the state or anyone who is seen as representing an arm of the state. There are degrees of terror about social worker and police intervention. We work very hard on that, but it becomes more difficult if ineffective interpreters are used or if social workers—I am talking about a minority of them—take a punitive approach or a colour-blind approach that means that they do not see those people’s journeys in context.

Oliver Mundell

Thank you for that. To go back to my other question, do you think that, when physical punishment is used by parents, there is always an evil intent or an intention to cause injury?

Nora Uhrig

As Amy Johnson said, most parents want the best for their children. A lot of what goes on in a family is a result of how the parents were brought up. That is why the awareness campaign is key and why we need to see this as a long-term change in society and in our perceptions. Just as happened with smoking in pubs, we now have a lot of studies. The studies show that smacking and using physical punishment on children lead to many problems. As you heard from the previous panel, a person’s having experienced physical punishment does not necessarily mean that they will end up doing, X, Y or Z. However, from all the studies, we know that among children who have received physical punishment there are higher incidences of antisocial behaviour, violent behaviour and aggression than exist among those who did not.

Oliver Mundell

I say with due respect that that is not what I am asking about. I am asking whether parents who use physical punishment always have an evil intent or intend to cause injury.

Amy Johnson

I do not think that that is the case. Smacking children comes from a long history of what has been considered to be normal. For a long time, we thought that it was harmless, but we know now that it is not. It is sometimes assumed—as a parent, I have experienced this—that in order to be a good parent it is necessary to smack your child. That view still permeates throughout society.

At the core of the issue is the idea that the parent is inflicting pain in an attempt to manage behaviour. The fact that we do not do that to adults in Scotland raises the question why we still think that it is okay to do it to children and—if we are doing that—how we place children in society.

Oliver Mundell

Why, therefore, do we not ban physical punishment of children? Why are we picking off the defence of “justifiable assault”? As we heard from the children’s commissioner, that will not increase prosecutions or have a revolutionary impact, in and of itself. Why not make the clear statement in legislation that physical punishment of children is wrong?

Amy Johnson

As we have discussed, there is the issue of popular opinion and how we work with the public. The evidence from New Zealand and Ireland suggests that when such steps are taken, smacking stops or decreases quite significantly.

I am not an expert on legislation. However, I argue that we must make sure that we work with the public and bring society with us in the conversation about how we parent and about the need for positive parenting. As the rest of the panel has said, we also need to make sure that there is wraparound support to help parents.

Nora Uhrig

As the previous panel mentioned, the bill will not prevent us from coming back to the issue in the future and saying that more is needed; it simply recognises where we are in Scotland at the moment.

Alex Cole-Hamilton

I have a brief supplementary to Oliver Mundell’s question. Do the members of the panel agree that, if we brought in a new offence to ban physical punishment, we might end up doing what all opponents of the bill fear, which is that we might criminalise all parents? If we were to create such an offence, we would remove the element of judgment that the attending police officer or social worker would apply. We know that, by removing the legal defence, we will send a clear message to parents that they will still have the autonomy to parent their children, but that they will no longer have a legal defence to rely on if they use physical punishment. The creation of a new offence, on the other hand, would immediately criminalise every parent who ever raised a hand to their child.

The Convener

There was a question in there somewhere.

Alex Cole-Hamilton

My question is this: do you agree that creation of a new offence might make criminalisation of parents more likely?

Alison Davis

I think that it would. A staged approach would probably work better. Once parenting skills are taught in every school curriculum at all ages—maybe in 20 years’ time—we could bring in the complete law but, as Nora Uhrig said, the bill is an acknowledgement of where Scotland is at this moment in time.

Fulton MacGregor

I apologise to Maureen Phillip for my earlier supplementary question. It was not intended to be a trick question, and I did not mean to put her on the spot; her evidence has been very good. I was trying to explore the idea that, as far as I can see, not a lot would change, because social work and the police would still be called out if an allegation was made. As part of the child protection process, which is extremely thorough, judgments would be made as to whether significant harm had been caused.

I was interested in what Amy Johnson said about where the bill sits in the continuum of offences against children. How can passing the bill help with that?

One of the frustrations that I have had as an MSP and in my previous work—I am sure that all the witnesses have had this frustration, too—is that it is extremely difficult to bring people to justice for really harmful acts against children. That is why I do not buy into the argument that there will be a whole bunch more prosecutions as a result of passing the bill. What are your thoughts on that?

10:45  



Amy Johnson

I agree. There is continuing violence within families, as well. In New Zealand, the it’s not OK campaign, which was associated with the legislation there, was about violence, including domestic violence—domestic abuse, as we call it in Scotland—being unacceptable.

It is important to look at how the bill is supported by other strategies and policies in Scotland that relate to violence against women and girls—specifically “Equally Safe: Scotland’s strategy for preventing and eradicating violence against women and girls”. It states:

“Violence against women and girls, in any form, has no place in our vision for a safe, strong, successful Scotland. It damages health and wellbeing, limits freedom and potential, and is a violation of the most fundamental human rights.”

It is very hard for me to work out how we can continue with justification of assault of children in any form, in that continuum, and still move ahead with the strategy on violence in Scotland.

Fulton MacGregor

I will stick to what I said originally: even if the bill is passed, people will make judgments and some things will not be prosecuted. Do you think that passing the bill will help practitioners to identify patterns emerging and that things that are maybe seen as okay now will be looked at?

Amy Johnson

I hope so. I also hope that the bill is supported by the Domestic Abuse (Scotland) Act 2018, in which the existence of patterns of behaviour are acknowledged—such that there is a step away from an incident-based approach towards acknowledging patterns of behaviour that cause harm and humiliation to children and young people.

Nora Uhrig

I think that Bruce Adamson, who was on the previous panel, mentioned that. It is hoped that the approach will increase early intervention and the support that families, parents and children receive.

Alison Davis

The Scottish Government’s new initiative to increase trauma awareness among all front-line staff in all agencies should have an impact on that. Increased awareness of trauma will have an impact on people’s behaviour—how we negotiate and communicate better with people who are severely traumatised. Generally, the children with whom we work score very highly on the adverse childhood experiences scale. That is a building brick that will help the process of making Scotland violence free.

Gail Ross

Good morning, panel, and thank you for your evidence so far.

Should money that is spent on implementation of the bill be classed as preventative spend?

Witnesses indicated agreement.

Gail Ross

I see nods from everybody. That is pretty straightforward.

In response to a question from Alex Cole-Hamilton about the current law and the changes that were made a few years ago in relation to punishment of children, Amy Johnson said that there is a lack of clarity in society about what is not acceptable in the eyes of the law, and about using implements to smack a child. We talked about having an awareness-raising campaign, should the bill be implemented. Should an awareness-raising campaign be happening now?

Amy Johnson

Yes—absolutely. The primary focus should be on violence against children and young people, but it should cover what is normalised, what is justified and what is acceptable in Scotland, and should relate that to violence as a whole.

Gail Ross

Annie Wells asked about taking the public along with us. There seems to be a misunderstanding of what the bill seeks to achieve. Should we have a campaign now, as part of the effort to take the public along with us?

Amy Johnson

Absolutely.

Gail Ross

You will have seen that, in the previous panel, the children’s commissioner said that, as it stands, the financial memorandum should be looked at separately from what is happening. The wider discussion has opened up a conversation about the support that is currently available, which you have all mentioned.

There is work that we should already be doing on trauma awareness with not just front-line staff but communities as a whole. What gaps could be looked at once we start an awareness-raising campaign on the whole issue?

Alison Davis

Awareness raising is done in one language—two in Scotland—based on the assumption that everybody understands and buys into equality, social justice and human rights issues. Awareness raising does not reach the people who are already vulnerable and being approached in a punitive way, so there would be a disproportionate impact on marginalised, new, ethnic minority communities—asylum-seeking and refugee communities—which would be a dangerous position to be in. We are already in a difficult position on that, but we would be in a more difficult position if we did not take the preventative measures seriously. That means costing them properly, ensuring that first languages are used and ensuring that there is a culturally aware and trauma-informed approach.

Nora Uhrig

As we are talking about costing and the financial aspect, I note that it is vital to realise that, because the measures are preventative, costs will be saved in the long term. The work might require more than £20,000, but to reach the communities that Alison Davis talked about, that work should be done anyway and should be linked to wider issues about violence in society and in the home. It is important that we increase our capacity and the resources that are directed towards that work.

Gail Ross

We keep hearing in evidence the words “assault” and “violence”. There are laws in place that should prevent violence against anyone, whether children, women or other family members. Awareness raising about that is vital.

We have had representations from members of the public who say, “I should be able to—”. There is a gap in our understanding about the difference between an assault on a child or violence against anybody in the home and the slight tap on the back of the hand or thighs that parents have talked to us about. Is there a difference, or should we not lift our hand to children in any circumstances?

Alison Davis

We should not lift our hand to children. If someone has been tortured or raped in parts of Africa or the Mediterranean, for example, or simply had no sleep or had a bad day, what is meant to be a slight tap on the back of the hand could be a very heavy slap—they might not be in a state to be able to measure that. An absolute ban makes far more sense and is a lot easier to follow.

Nora Uhrig

People interpret “a slight tap” in very different ways. How can you measure that? Also, what message does that send to children?

Maureen Phillip

The slight tap on the hand for somebody with a complex sensory disorder could escalate to a full-blown incident, which would lead to restraint. In many ways, the ban would prevent a lot of problems.

Lucy Chetty

On that point, when a young person is in a high level of distress and showing some form of what could be deemed violent behaviour, physically intervening could cause the stress transaction to multiply and make the situation a lot worse.

Amy Johnson

The “Equally Protected? A review of the evidence on the physical punishment of children” research was mentioned in the evidence and, I think, discussed by the previous panel. It found that parents do not often start off abusing or seriously assaulting their children, but start with lighter or milder physical punishment. That is not to say that abuse will necessarily happen if someone smacks a child, but if we are trying to minimise the risk of that, it is necessary to say that we should not raise our hands to children at all.

Alex Cole-Hamilton

I have a supplementary to Gail Ross’s question, although this has probably been answered. We have heard about empirical research from academics who oppose a change in the law and who say that so-called back-up smacking is a more effective tool of parenting than other sanctions. Do you agree that, by removing the option to back-up smack, we are impeding the normal parenting behaviour of reasonable parents who can always retain control?

Alison Davis

No, but we need to give much clearer messages on what positive parenting is. I know people who do not smack their children but whose children probably wish that they would, because there are huge levels of emotional abuse and coercive control, which are the same thing. We need to send out messages about positive parenting. Rather than say, “Don’t smack,” we need to say, “Support in a positive way.” We need positive parenting and positive messages.

The Convener

If committee members have no more questions, Gordon Lindhurst can ask any questions that he wishes to put to the panel, through me.

Gordon Lindhurst

Thank you, convener. I have two questions for Nora Uhrig from the Equality and Human Rights Commission. In your submission, you state that case law

“demonstrates a general trajectory towards prioritising child welfare and children’s rights over parental rights.”

That was covered a bit by the first panel. With parents’ rights and children’s rights, do you see one as being more important than the other?

Nora Uhrig

I think that we talked about that earlier. Under international human rights law, it is clear that the best interests of the child need to be a priority. However, I do not see the bill as being about the rights of the parents versus the rights of the child. It is about a change in society and creating a more non-violent society as a whole, and linking that to violence in the home, which Amy Johnson has talked about, and to wider issues. For example, we know that there is a connection between physical punishment and domestic abuse.

The Convener

Do you wish to add to that, Ms Johnson?

Amy Johnson

No—I agree.

Gordon Lindhurst

I have one further question. Who should decide for the parents and the children? Are we not just saying that it is people outwith the family who will decide instead of the parents and children?

Nora Uhrig

No. In many ways, you are actually giving more of a voice to children and creating more of a platform for communication. You are recognising that both parents and children have rights, and that it is about the family unit and how parents and children interact with each other. If someone is using physical punishment, what sort of message does that send to the child? We know from long-term studies that children who receive physical punishment are more likely to display antisocial behaviour. Also, in terms of communication, it is much more useful to send more positive parenting messages.

The Convener

Mr Finnie, do you wish to add anything?

John Finnie

I have no questions for the witnesses, but will you indulge me by allowing me to make a point of information?

The Convener

Absolutely.

John Finnie

It is about the figure of £20,000 that has been mentioned a number of times. The issue of promoting awareness and understanding of the bill is covered in paragraphs 27 to 31 of the financial memorandum. The figure of £20,000 is actually the Scottish Government’s figure. In fairness, as paragraph 30 points out, the Government has said that

“a full marketing campaign would ... cost between £200,000 and £475,000.”

To give some balance, the Government went on to say that, by using existing resources such as websites and by sending information to key stakeholders, a full campaign would not be needed.

That is not my view. The figure that I arrived at is £300,000. Paragraph 29 outlines the background to how it was arrived at, which relates to similar campaigns that the Scottish Government has run and for which it has published figures. For example, the figure for the campaign that we took as a comparator was £303,000, which we rounded down to £300,000. That would cover a period of approximately six months before and six months after the law comes into force, were the bill to be passed. That was just a clarification.

The Convener

Thank you for that.

I thank the panel for their evidence, which has been helpful. Our next meeting will be on 15 March in the Fingal centre in Portree, on the island of Skye. Our meeting begins at 4 o’clock. Members of the committee will hold a public question and answer session immediately before that, starting at 3.15.

The committee has previously agreed to hold discussions of evidence in private, so we will now move into private session.

11:00 Meeting continued in private until 11:27.  



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Third meeting transcript

The Convener (Ruth Maguire)

Good afternoon, everyone, and welcome to the seventh meeting in 2019 of the Equalities and Human Rights Committee. All mobile devices should be switched to silent.

I welcome Gordon Lindhurst MSP and John Finnie MSP, who are joining the committee this afternoon. We have received apologies from Oliver Mundell MSP and Annie Wells MSP.

I want to take a moment to acknowledge the tragic events in Christchurch, New Zealand, earlier today. The committee is joined this afternoon by a number of faith and belief groups. I am sure that we want to come together to condemn the cowardly attack in Christchurch, which was motivated by hate for a particular faith, and to send our thoughts, love and prayers to all those affected.

Agenda item 1 is the third evidence session on the Children (Equal Protection from Assault) (Scotland) Bill. I welcome James Gillies, public policy assistant from the Christian Institute; the Rev Gordon Matheson, a minister from the Evangelical Alliance; and the Rev Richard Ross, a minister of the Free Church of Scotland (Continuing).

I will open the questioning. Do you support the aim of the bill, which is to end the physical punishment of children?

James Gillies (The Christian Institute)

The Christian Institute is opposed to the bill.

The Rev Richard Ross (Free Church of Scotland (Continuing))

The Free Church of Scotland (Continuing) is opposed to the bill.

The Rev Gordon Matheson (Evangelical Alliance)

The Evangelical Alliance Scotland is also opposed to the bill.

Our public policy officer, Kieran Turner, was supposed to be sitting in this chair today, but he is unable to attend, so I have stepped in at short notice. I thank the committee for allowing that. I will endeavour to answer what I can.

The Convener

Thank you for joining us. You are very welcome.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good afternoon, panel, and thank you very much for coming to see us. Your testimony will inform our consideration of the bill, and I am grateful to you for that.

I want to start by looking at the perception of a tension between children’s rights and parents’ rights, which we covered in the previous committee sessions—it is okay if you have not managed to see those sessions. From a lot of evidence that we have received on not just the Children (Equal Protection from Assault) (Scotland) Bill but other bills that we have taken through Parliament, we know about the international imperative of organisations such as the United Nations Committee on the Rights of the Child, which say that we are not meeting our United Nations Convention on the Rights of the Child obligations in as much as we still allow the physical punishment of children in the home. There are specific articles to which we are a signatory that are incompatible with the continuation of physical punishment in the home. That is not limited to the UNCRC; there are other conventions to which we are a signatory that are incompatible with physical punishment in the home. Is that tension real? Where in other international laws or treaties to which we are a signatory does that jar? What rights are given to parents that should allow them to continue to physically punish their children?

James Gillies

The fact that children, parents and adults have different legal standing in existing law was touched on before. Parents have authority over their own children, and the rights in law are slightly different because of that. It is often said that the obligation under the Declaration of the Rights of the Child is to ban smacking, but the declaration states that children should be protected from violence. We absolutely agree with that, but Christians would say that the current law already protects children from violence. Smacking, as used by many thousands of loving parents—Christians and others—across Scotland is not violence against children. It is not abusive. The obligation has therefore already been met under existing Scots law, and the bill is not necessary to add further protection to children. In fact, we would say that it would not enhance the protection of children but would distract the police, social workers and others from doing their very important work of identifying abuse under the law.

Alex Cole-Hamilton

It is important to be absolutely clear that the bill does not create a new offence by banning smacking. Smacking has always been assault, but parents have been able to use a legal defence to justify their actions. We are talking only about removing that defence, so that the protections that children and adults have are equalised in the eyes of the law.

I extend my original question to Mr Ross and Mr Matheson.

The Rev Richard Ross

Perhaps I could bring in scriptural support. We, as a church, believe that scriptures are the word of God and the rule of life, as well as the rule for the church. Many scriptures speak of a child’s responsibility to

“Honour thy father and thy mother”.

There is also parents’ responsibility not to provoke their children to wrath. If we look at the scriptures for authority, we can see that there is protection for the child and the parents, because God’s standard is laid down. If we turn away from God’s standard and replace it with a standard that is limited to mortal man, we will have nothing but trouble.

Alex Cole-Hamilton

Should we use scripture to define all human law? Should human law follow the word of God as it applies throughout the Bible? Should every aspect of the Bible be used to determine how we govern our country?

The Rev Richard Ross

As I understand it, Scots law is based on moral law, which is the word of God. The bill will move away from that, and it will allow Scots law to be defined by man himself. The authority will be man, rather than there being God-given authority. When we have God-given authority, we have real authority.

Alex Cole-Hamilton

Do you accept that we have laid aside aspects of scripture in recognition that they do not fit in with our modern world? We would not recognise certain parts of the Bible, particularly in the Old Testament, as representing a good way to live or to conduct our lives.

The Rev Richard Ross

The political elite might believe that that is the case, but I am talking about ordinary, law-abiding citizens in their day-to-day lives. Many thousands—perhaps millions—of Scots believe that the scriptures give a good, solid foundation for life, not only for children but for parents. As we understand it, the bill is an open attack on the authority of God to tell us how to live, and it will smash the very foundation of Scottish society.

Alex Cole-Hamilton

We will discuss scripture further later on. However, you say that the bill is an open attack on the authority of God. Where in the Bible does God tell us to physically punish our children?

The Rev Richard Ross

In Hebrews, chapter 12, it says:

“For whom the Lord loveth, He chastens them”.

It says that God lovingly chastens his people.

Alex Cole-Hamilton

I chasten my children every day, but I do not do it physically; I do it through screen bans and time outs. Surely, God can find other ways to chasten his flock.

The Rev Richard Ross

I am not here to defend God. God has given us his word, and we either accept it or we do not. We might say that there are other ways, but what have the other ways produced so far? Look around the world. Think about the questions about the state of the world that were asked in the earlier session, which did not receive proper answers from the panel. Man does not have the answers to addressing the state of the world. Look at our nation at the moment. It is in a quagmire because we have turned our back on the Lord and his word. Although you say that the bill does not create a new offence, it does. Loving Christian parents who use smacking or other forms of parental discipline will have that right taken away. The scriptures teach that parents have that right. I know that it is something that some people do not accept, but that is what the scriptures teach. If we are going to take away the foundation of God’s law from the nation, we are in serious trouble.

Alex Cole-Hamilton

I was raised in a home in which there was no physical punishment, and I think that I turned out okay.

Mr Matheson, what is your position on the conflict between children’s rights and parents’ rights?

The Rev Gordon Matheson

I have spent the past 48 hours trying to catch up with some of the committee’s previous evidence sessions and reading around the subject. I genuinely feel unqualified to answer the specific question about compliance with international treaties. However, from reading the previous evidence and listening to the earlier session this morning, I understand that around 50 countries have already adopted the provisions that are requested in those treaties, using various instruments. What is interesting is that the method that has been chosen in Scotland involves amending criminal law rather than taking a civil law approach.

One of my concerns is that I am not sure how much we have scrutinised the issue. I had not picked up on this issue about New Zealand until the session this afternoon, but even the fact that there have been eight prosecutions arising there since New Zealand changed its criminal law in this regard—

The Convener

If I can just interrupt you briefly, today’s session is part of the scrutiny. We are in the process of scrutinising the issue. We are taking it seriously.

The Rev Gordon Matheson

My point would be that, as we say in our submission, the Evangelical Alliance respectfully requests that the committee provide a heightened scrutiny of the proportionality of this particular method of achieving your stated goals. It might be worth looking at whether a civil instrument rather than a criminal instrument could be used.

Alex Cole-Hamilton

The reason why we are adopting this approach is that it is a road well travelled. This legal defence used to apply to the punishment of a wife by her husband. Thankfully, that was repealed and does not exist anymore. There are aspects of scripture that you could interpret as suggesting that men should have the right to physically punish their wives. Happily, we live in a society that utterly rejects that notion. I believe that progress dictates that this is a necessary part of the human journey in this country.

The Rev Richard Ross

Alex Cole-Hamilton just said that scripture supports husbands beating wives. Can he show me where it says that?

Alex Cole-Hamilton

I said that you could interpret—

The Rev Richard Ross

Can you show me?

Alex Cole-Hamilton

I said that you could—

The Rev Richard Ross

Can you show me?

The Convener

Folks, please.

The Rev Richard Ross

There is an open Bible here. Mr Cole-Hamilton is claiming to know what scripture teaches, but he cannot prove what he has just said.

Alex Cole-Hamilton

You are putting words in my mouth.

The Rev Richard Ross

I would also like to ask, who is actually the convener of this committee? It looks like Mr Cole-Hamilton is taking the chair. [Interruption.]

The Convener

Okay—a rousing round of applause for that.

The Rev Richard Ross

There is an open Bible here. After the session, show me where it says that, Mr Cole-Hamilton.

The Convener

Mr Ross, I think that it would be good for all of us if we conducted this meeting in a proper, mannerly and respectful way.

The Rev Richard Ross

I am not being aggressive.

The Convener

You are interrupting. I am not saying that you are being aggressive, and I am not saying that you are being disrespectful; I am reminding you that this is a meeting of the Scottish Parliament. We have invited you here to give your views, and I want you to have the chance to give them a full airing so that we can question you on them. So, we will just conduct ourselves properly.

James Gillies wants to come in.

James Gillies

I think that the reverend is trying to communicate the fact that the vast majority of Christians would not state that scripture condones violence in the home.

On the defence that is in section 51 of the Criminal Justice (Scotland) Act 2003, our understanding is that it expressly outlaws the use of an implement, blows to the head and shaking, as has been stated already. However, the explanatory notes say that chastisement must be

“moderate and not inspired by vindictiveness”.

Really, what it is talking about is only the most mild tap on the hand or smack on the bottom. It is a defence in law that clarifies the law, and which is understood by prosecutors and the police. It makes a distinction between violence and smacking that is used by loving parents, which is light and moderate.

Some of the consultation responses that you have received from police officers and child protection specialists say that that section of the law is useful to them. It gives them the ability to make a distinction between those things and to make a judgment call. In one case, it might be just loving chastisement and, in another case, it might be abuse and should be pursued as a criminal case.

16:15  



Police officers on the ground—including in one submission from an anonymous officer with 29 years’ experience of child protection work—have said that it is a useful legal defence and the effect of removing it would be to make all physical discipline, no matter how mild, technically an assault under the law. That would lead to parents being arrested, prosecuted and perhaps even convicted, because the police would be compelled to investigate a report of smacking in the same way as they are currently compelled to investigate abuse.

Before the law in New Zealand changed, politicians said that the law would not result in parents being criminalised, but that is what has happened. A legal report that was released last year said that parents in New Zealand have, in effect, been criminalised. With respect, your assertion that good parents will not be criminalised has not been the case abroad. Looking at such examples, we argue that the same thing will happen here. Many of the parents in the audience today are concerned about that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Mr Gillies, on the point that you just made, from your organisation’s research, do you know how often the justifiable assault defence is used in court?

James Gillies

We—and, I think, this committee—have not come across any instances in which that defence has been used to allow unreasonable physical violence to take place. The defence is invoked rarely, which shows that it is well understood. It is a long-existing defence in law and is very clear, so it is not cited often in court, because the courts and police know the difference between violence and loving parental discipline.

Fulton MacGregor

So why would that change? I think that you are right. I should declare an interest—I was a child protection social worker for eight years and have been involved in a lot of joint investigative interviews. How would it change if the bill were passed? As I have said in previous committee meetings, if an allegation is made, it is not for a teacher, health visitor or anybody else to judge whether an allegation is minor or whether something is just a smack; it goes through a child protection process.

James Gillies

There was an anonymous submission from a police officer, which is listed as submission 349—I am not sure why it was anonymised. The officer has 29 years’ experience, mainly as a detective; he spent 10 years working in the child protection department as a detective sergeant and worked in the national child abuse investigation unit. It is fair to say that he has a lot of experience. He explains the current process and says exactly what would happen in practice in the example of a young boy who tells his teacher that his mother has smacked him. He says that he is against the proposal because—on the point that I explained earlier about smacking being treated as abuse—for every allegation of smacking, the police would be compelled to launch a criminal investigation. He says:

“My experience of working in child protection shows that despite a massive injection of staff over the years, the current workload on investigators is virtually unmanageable. Should this law be passed, the workloads of both the police and social work would be massively impacted, meaning these already thinly spread groups would have to do much more. In my opinion, it is disproportionate and irresponsible to introduce legislation that is not deemed necessary or helpful by practitioners”

on the ground.

Fulton MacGregor

I appreciate that that was one individual’s view, but the vast majority of the evidence that we have taken from agencies such as Police Scotland has suggested that that would not be the case. The agencies said that, under the current procedures, they do not think about whether a parent will use justifiable assault as a defence before they decide whether to prosecute. The whole child protection system is about finding a balanced and measured approach to protecting children and safeguarding families, and we have not heard a lot of evidence to suggest that that would change.

Do you not agree that one of the major problems that we have in Scotland, and probably across the world, is not an increase in the criminalisation of parents but getting convictions of people who commit serious offences against children, and that the proposed new law could help to put that more at the forefront of people’s minds?

James Gillies

Of course we agree that it is of fundamental importance that abuse is identified and the perpetrators are brought to justice, but we can only go by the evidence that we have seen, which we included in our submission, from people such as the officer I mentioned. Police Scotland talked about the cost and resource implications of the proposed law. We think that the best way to strengthen the arm of the police and others would be to strengthen the existing structures. If people are complaining that they are overworked and that their workload is unmanageable—we know that social workers and others are already under huge stress—the way to help them is to give them more resources and to help them to do their job under the existing law. Asking them to go after parents who have said that they smack their children who, in the vast majority of cases, are loving and reasonable ordinary parents will distract them and will have an implication for their workload—it will make it worse.

Therefore, we fear that, rather than helping children, the bill will distract the police and social work. Ultimately, the net could be spread so thinly that some of the extreme cases of abuse would be missed, which is a very sad prospect.

Fulton MacGregor

I will widen out my questions to the rest of the panel, because I appreciate that I have been focusing on you, Mr Gillies, for which I apologise.

James Gillies

That is all right.

Fulton MacGregor

Do you accept that, for the hypothetical examples that you have given, which relate to everyday situations, there are already child protection measures in place, which are being used, and that the bill would not alter that?

The Rev Gordon Matheson

I suspect that that is true at an investigative stage, but my concern would be about the next stage, when it comes to mounting prosecutions. I do not know whether there has been enough investigation and accumulation of data to support the notion that the removal of the reasonable chastisement defence would result in a very low net increase in the number of prosecutions. I am simply not convinced that, in the evidence that the committee has received, that has been fully articulated. I would genuinely love that to be investigated further, and for the committee’s resources to be devoted to looking into that in some detail.

The Rev Richard Ross

We are of the view that the Scottish Parliament ought to devote its efforts to tackling real harm and abuse of children. The bill will provide a net that will catch loving parents, because it will be spread so wide. It represents an intrusion into family life that does not belong to the state. Children are given to the parents to bring them up. It does not belong to the state to tell parents at what level they are to deal with their children. Parents are best suited to bringing up their children. I am a father, and we know that Mr Cole-Hamilton is a father. I presume that he would not like me to come and tell him how to bring his children up, so why should others have to be told by a parliamentary committee, the Scottish Parliament or anyone else how to bring up their children? We are talking about a God-given right. Parents—not somebody on the outside who is looking in—are best placed to decide how to bring up their children. I am sure that Mr Cole-Hamilton would agree that he is best placed to bring up his children in the way that he feels suitable.

Fulton MacGregor

I hear what you say about parents knowing best, but I come back to the point that, as Alex Cole-Hamilton said, smacking is already an offence. The bill seeks to remove the defence of justifiable assault. At the moment, prosecutors, police and other partners in the criminal justice system determine whether a case is taken forward, and, if it is, the defence of justifiable assault can be used. So far, we have not heard from anybody who has spoken to us how often the defence has been used.

The Rev Gordon Matheson

Does that point not apply if we look at the question from both angles? There is no clamour from Police Scotland or the prosecution service to remove the defence. If that was the case, there would perhaps be more sympathy for what is proposed. The fact is that the clamour for change is coming from within the political class rather than from those who are at the front line in dealing with prosecutions on the issue. Those people are not finding that the defence is a barrier or obstacle to taking forward prosecutions. If it is not providing a barrier at the moment, surely that is an argument against removing it.

Alex Cole-Hamilton

I want to address something that was said earlier, and put a question back to the panel. James Gillies mentioned the testimony of an unnamed police officer on his concerns about the bill. That officer is absolutely entitled to those views, but what do the panel members think about the views of Police Scotland and, more notably, the Strathclyde violence reduction unit, which is broadly supportive of the aims of the bill, not least because the unit believes that, far from taking up more police time in prosecuting parents, it will help efforts to reduce violence on our streets by delegitimising the use of violence as a tool of sanction or anger?

James Gillies

I challenge your use of the word “violence”. Again, it goes back to the distinction between violence and the smacking that, to thousands of parents, is loving discipline. The central question on the bill is whether smacking is harmful to children, and the research evidence does not show that it is harmful. The policy memorandum to the bill cites reports that seem to imply that smacking is harmful and has effects on children, but the Welsh Government, which is consulting on a similar change to the law, stated in its consultation document that

“there is unlikely to be any research evidence which specifically shows the effects of a light and infrequent smack as being harmful to children.”

There is also a submission to the committee’s consultation by Professor Larzelere, a US psychology professor who, along with Professors Ferguson and Gunnoe, has studied the major research on smacking and the methodology behind it. They fear that there is confirmation bias.

The indication from the Welsh Government in its honest assessment ahead of its legislative change and those academics is that the research evidence does not anywhere near conclusively show that a light smack, which many parents use in loving homes, harms the child.

Alex Cole-Hamilton

But the Strathclyde violence reduction unit’s point is that children who receive a physical intervention believe that a physical intervention can be appropriate outside the home among their peers. Irrespective of whether we believe those interventions to be harmful or violent, such children believe that the connection of a hand to a body part is a legitimate tool of anger or sanction. Do you accept that?

James Gillies

I would have to see the research evidence behind that. I do not think that there is any research evidence to show a logical connection between a light smack used by parents and violence. I do not think that there is a link between smacking and violence in children. Since the change in the law in Sweden to ban smacking in the 1970s, there has been a huge rise of over 1,000 per cent in child-on-child violence. That is the opposite from what Mr Cole-Hamilton stated. Rather than causing or begetting violence, smacking is reducing it—some researchers would say that. We question the assertion that there is a logical connection between smacking and violence.

The Rev Richard Ross

I agree with Mr Gillies. Smacking is not violence; it is discipline, and there is a difference between discipline and violence. Mr Cole-Hamilton, you said in the public question and answer session that you were smacked. Has that made you more violent?

Alex Cole-Hamilton

I was smacked once, and I turned round and bit my father in the face so, yes, it made me more violent, at the time.

The Rev Richard Ross

Yes, but you were two years old.

Alex Cole-Hamilton

Absolutely. He never hit me again.

The Rev Richard Ross

How many other members of the committee have been smacked?

The Convener

The committee members are here to ask the questions, Mr Ross. I will bring in the Rev Gordon Matheson.

The Rev Richard Ross

Can I just make the point, convener? I presume that most committee members have been smacked and maybe as parents they have smacked their children. It has not held any of you back—you are all members of Parliament. It has not psychologically damaged you or made you violent.

The Convener

You have made your point. Mr Matheson, you wanted to speak.

16:30  



The Rev Gordon Matheson

With regard to the Strathclyde violence reduction unit, it is interesting to see the police’s assessment against the public perception of where this is going. Around three quarters of Scots polled on this issue have indicated some opposition to removing this defence in law. Given that 74 per cent of people are against this measure, I have to wonder what the goal is of using a legislative change of this nature, which is a very blunt instrument. It can be set against the behavioural changes that we are already seeing. It is welcome that smacking as a wholesale pattern of behaviour in society has reduced. That is probably a good thing. It is great to have access to the whole range of parenting tools. When I was growing up, my mum did not have much of a notion about putting me on the naughty step or the sorts of steps that I take with my daughter and son at home. We are already seeing behavioural changes that are making aggressive and abusive smacking a thing of the past, and if that is the case, what we are left with is proportionate and reasonable.

The question that I come back to is this: is it reasonable for our society to prosecute a reasonable level of smacking in homes, where we might be talking about a one-off incident or where such smacking happens not in anger but as a loving, careful and considered response to a very pressing situation that needs reinforcement? That is, I think, the experience of the 74 per cent of Scots who, when polled, said that the change was unnecessary.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I just want to get the panel’s opinion on a question. If a parent smacks a child, even if that smacking is proportionate and reasonable, what do you think is the end result that the parent expects?

The Rev Richard Ross

It depends entirely on the situation. If a child is going to run out on to a road, the end result will be to stop them from doing so. If they are going to pull a pan of hot water down on themselves, you will keep them from that danger. However, your question is like asking, “How long is a piece of string?” You need to know the context before you can say what the end result will be.

Gail Ross

So every instance of smacking is different in different circumstances, and the smacking can be at a different level. However, I think that James Gillies said that smacking is light and infrequent. If so, what is the point of it? Why do it at all?

James Gillies

It is one technique that parents use to discipline children and imbue them with a sense of right and wrong. The anecdotal evidence that we have heard suggests that smacking is light and infrequent. The Rev Richard Ross highlighted examples where a child was in immediate danger, but with regard to the use of smacking as a form of discipline—with, say, a light smack or tap on the hand—people will say that some children do not respond to verbal warnings. If they keep reaching out for a socket or something, a light tap on the hand will communicate the message at an age at which verbal communication might not be so effective.

Gail Ross

But in what way does it communicate?

James Gillies

I am sorry—I do not understand the question.

Gail Ross

Is it about inflicting fear or pain? In what way does what you have suggested communicate something to a child?

James Gillies

I suppose that it is a light and slightly painful thing that communicates danger or that the child is doing something wrong. However, what we are talking about is very light, mild and reasonable. Parents do not seek to harm their children when they smack them—it is just part of loving parenting. They want what is best for their children.

Gail Ross

Absolutely.

The Rev Richard Ross

We have to bear in mind the nature of a child. There are different opinions about that: some think that they are innocent, while others see them as needing correction. The scriptures teach that we are all sinners, so we all need correction. A gentle smack, as well as a verbal rebuke, is part of the correction and the teaching process. If you get a question wrong at school but you are never told that you are wrong, you will never learn anything.

Gail Ross

But if you get a question wrong in school, you are told that you are wrong, and you are told the right answer and given an explanation. You are not given a light tap to correct you, thankfully.

The Rev Richard Ross

Perhaps when you were in school.

Gail Ross

How old do you think I am?

The Rev Richard Ross

The point is, how will the child know the difference between right and wrong if you do not have that opportunity to give the child a smack? If they are running out on the road—if they are running off on you—you need to do something in that instant. You cannot grab them back and start explaining to them, because they are off. You have to be able to communicate to the child that what they have done is wrong.

The Rev Gordon Matheson

It is interesting to note that, in these circumstances, it is very often an instinctive response on the part of the parent. I have been there myself. There is an element of alarm when your child runs out on to the road. Where we stay, there are tractors up and down all the time, and sometimes the gates are not locked. It is the same with a hot pan on the stove or tampering with an oven while it is open, or whatever else. The parental alarm says that this is a really dangerous situation, and no amount of explanation, in this context, at this moment, will reinforce in my child that this is a danger that they must be aware of.

The Convener

Mr Matheson, could I pause you for a second? One of the other people we took evidence from said something that resonated with me. A hot pan or the danger of running on to the road is often used as an explanation for loving smacks. It seems peculiar that, if your child was running towards a car, your instinct would be to hit them. Surely that would knock them over. If it is about keeping them safe, would your instinct not be to hold them?

The Rev Gordon Matheson

I can see the point that you are making. In that instance, when the child has run off in those circumstances, a smack is not necessarily punitive. It is more to reinforce a sense of alarm in the child—a sense of alarm that you understand, as a parent, but which the child, because of their limited sense—

The Convener

So it is about communicating to the child your alarm at the situation, through light pain—loving pain.

The Rev Gordon Matheson

Through light pain. A light slap on the wrist in that circumstance says, “This is a very dangerous situation you find yourself in.” The purpose of that would be to remind the child in future that those are dangerous situations to find themselves in and that such situations have consequences. Children will remember that.

Mary Fee (West Scotland) (Lab)

I, too, welcome the panel. In most of our other evidence sessions, we heard that although the bill removes the defence of reasonable chastisement, it does not define “reasonable”, and that it would be helpful if the bill explained in plain terms exactly what that meant and what classified reasonable chastisement. Do you agree with that?

James Gillies

Are you referring to this bill or to the Criminal Justice (Scotland) Act 2003?

Mary Fee

This bill.

James Gillies

Are you asking whether there should be something in the bill to determine what is reasonable chastisement?

Mary Fee

Yes.

James Gillies

We would say that the definitions under the 2003 act are good. The explanatory note on section 51 is particularly helpful where it says:

“moderate and not inspired by vindictiveness.”

Mary Fee

Do you think that more of an explanation is needed than “moderate”?

James Gillies

The evidence shows that parents and prosecutors understand that already. It is probably fine as it is.

The Rev Richard Ross

Obviously, previous generations understood what it meant. I find it strange that members of the Scottish Parliament think that modern generations are unfit to know what reasonable chastisement means and that there must be a blanket ban.

The Rev Gordon Matheson

I think that the changes as a result of the 2003 act were very welcome and have been well received. I remember my own experience growing up was to get a thick ear for doing things and I do not think that could happen now. I am glad of that.

At the same time, I have been trying to work out the balance of harm. Many of the submissions that the committee has received have sought to assess the harm to the child and their experience of pain. However, from my experience as a minister working in pastoral environments and from speaking to a number of my colleagues, both in my own denomination and more widely in the Evangelical Alliance, I know that we have all seen the lasting harm that a criminal conviction has on parents and on families in different situations.

I heard committee members in previous evidence sessions repeatedly articulate the point that a dramatic increase in the number of convictions is not envisaged. However, at the end of the day, we are still talking about changing a defence in criminal law. Inevitably, there will be some impact. In my experience, such situations devastate family life. They have a remarkable impact on the experience of families. I therefore wonder about the balance of harm when mild chastisement, which is being exercised in a loving context, unfortunately results—perhaps without any deliberate desire on the part of our legislators—in a criminal conviction. Has the harm in such situations and the impact on families been taken into consideration? As a society, these are big questions for us to assess.

Mary Fee

Do you think that the bill will make any positive changes to how parents discipline their children or will it have a negative impact on that?

The Rev Richard Ross

I think that the bill will have a negative impact on parents. I agree with my colleague the Rev James MacInnes, who said in the earlier question-and-answer session that outlawing smacking would create greater tension in the family. His point was not answered.

We know that family life nowadays is quite stressful anyway. The bill will increase that stress and, as we said in our submission, it will

“disrupt and potentially ... harm ... families.”

As my colleague Gordon Matheson mentioned, a conviction will have a long-term effect. If children grew up with the knowledge that their mother or father had a criminal record, it would damage not only the family but the children themselves.

I think that the bill will have only a negative effect. The committee really has to think about this. If the bill becomes law, it will have a huge negative effect on families in Scotland, and families are under a lot of pressure as it is.

James Gillies

I would reiterate the breadth of public opposition to the bill: 75 per cent of people polled regularly state that they do not want this change in the law and recent polling showed that 68 per cent of parents think that it is sometimes necessary to use a light smack with a naughty child.

Smacking is very common; the majority of parents find it acceptable and reasonable. They are the people who could be arrested, prosecuted and convicted under this change to the law. It is not really the place of Parliament to get into the minutiae of family life in this way. If Parliament feels that smacking is not desirable, it could have an educational campaign, for example, to encourage parents not to smack. However, that is different from a change to the criminal law that will result in loving parents being criminalised, so we urge the committee not to make such a change.

Mary Fee

Mr Matheson, is there anything that you would like to add?

16:45  



The Rev Gordon Matheson

One of our concerns is about where the change in the law may well have the most impact in the long run. The likelihood is that, if there was to be an increase in convictions, it would have a disproportionate impact on vulnerable families in areas of deprivation. Convictions are going to arise in areas where the police and social services are already present—not in middle-class areas where families have it together, the kids go off to school every day and everything seems fine, but in areas of our communities where, because of other factors of deprivation, there is already frequent intervention. The bill increases the scope of criminality in that environment, and I wonder whether that is something that we want to lump on areas of deprivation in our society today. We could take a more nuanced approach.

I always come back to thinking about how the Bible articulates this in the first place. The Bible, if anything, is the story of a family. If you ever open a bible and you read the first chapter, you will see that it is the story of God creating a family, and throughout scripture there is the unfolding and working out of God’s purposes in families. As far as possible, as a society, those are the things that we want to reinforce. They are positive, good things, and churches and many others in society besides us recognise them as good, healthy and helpful. I fear that an unintended consequence of the approach in the bill will be to be disruptive to those things, rather than beneficial to them.

Mary Fee

I want to ask you about faith, because I am keen to hear your views on where the bill sits within the teachings of your church or your belief. Mr Ross, you spoke about the authority of God, the moral law and God’s standards. Where does the bill sit within the teachings of each of your faiths?

The Rev Richard Ross

I think it would totally oppose what the scriptures teach. I could tell you many scriptures that support parents and the parental right to discipline their children. There are also many scriptures that support the child’s responsibility to give honour to their parents. I think the bill is going to remove that. We make it clear in our submission that it will potentially put those who hold to the scriptures in a position where they have to decide whether to obey man or obey God. It is not only going to criminalise parents, or catch parents; it might also have greater ramifications for those who hold to the scripture of Christian faith.

The Rev Gordon Matheson

In the Evangelical Alliance, we have a clearly articulated platform of Christian teaching built around notions of love, freedom, justice and truth, and I think that that is reflected generally across the teaching and preaching that is articulated in our member organisations and in their pulpits. The bill will impact on family life in a range of ways.

Have I ever gone near the subject from the pulpit? I have not. The specifics that the bill addresses are not an area that I have yet been able to come into contact with in working through preaching and scripture. However, we want to articulate reasonable, responsible parenting and to teach people in our churches to take seriously and proportionately their responsibilities as parents, and that includes each parent working out for themselves what an appropriate level in their own experience of smacking might be.

My feeling is that a lot of the problem can be identified by looking at the work of the Strathclyde violence reduction unit and considering where violent smacking is being done and where the use of smacking in a home environment goes beyond the very early years of a child’s experience, once they have passed the level of being able to cognitively process things for themselves.

At that point, we are into the very dangerous territory of intervention in which smacking can and probably does have negative influences and impacts. However, I am speaking from personal experience of early years interventions with children; that is where I have to limit it.

Mary Fee

Mr Gillies, we might accept that the scriptures say that parents have the right to discipline children, but do they explicitly say that parents have the right to hit their children?

James Gillies

If by “hit” you mean violence, the answer is no. We would say that smacking is not violence. The Christian Institute represents many different Christian denominations. Like the Rev Gordon Matheson, we say that Christian parents use a range of techniques with their children—

Mary Fee

To discipline them.

James Gillies

Yes—and smacking is one of them. That is a concern to many of our supporters. Not all our supporters would choose to smack, but many would. That is just one of the techniques that they use, and the bill would affect those people.

Mary Fee

If we want to stick to the letter of what the scriptures say, they say that parents have the ability to discipline their child. They do not say that parents have the right to hit their child.

James Gillies

No. The scriptures would never condone violence against children. We look to our heavenly father, God, as the example of parenting. As Christians, we should discipline our children—that is clear from scripture—but not by violence.

Mary Fee

Thank you.

Gail Ross

I have a point of clarification for the Evangelical Alliance. James Gillies talked about more resources going into an education campaign. I absolutely take that on board.

James Gillies

I am sorry to interrupt, but I want to clarify that that is instead of the legislation, not as well as it.

Gail Ross

I absolutely take that on board. Thank you.

The Evangelical Alliance has also talked about that. From the evidence so far, it seems that it believes that reasonable and proportionate smacking should be used in a loving parental home. Its written submission states:

“We believe investment in education would be a more proportionate way to tackle this issue as compared to potential criminalisation.”

Will Mr Matheson clarify for the record what the Evangelical Alliance means by “this issue”? What is the issue that parents need to be educated about?

The Rev Gordon Matheson

I have to confess that I was not involved in drafting the written submission. I apologised for Kieran Turner not being here today—I think that he would have been able to give the committee more clarity on that. If you want me to, I can ask him to write to the committee with an answer to that question.

The Convener

It might be helpful if he could write to us with an answer to that question.

Gail Ross

I have one more question. I probably should not use the term “devil’s advocate”, but I will play the devil’s advocate for a moment. If the bill is passed, the Parliament and the Government will need to have a big awareness-raising campaign. How would your organisations raise awareness of the new legislation or of the removal of the justification of assault from legislation among your supporters and congregations?

The Rev Gordon Matheson

Carefully, I think. I do not think that there would be a knee-jerk reaction from the organisations that I am involved with—the Evangelical Alliance and the Free Church of Scotland. I think that we would have a careful and nuanced response.

The Rev Richard Ross

We would remind parents of their responsibility to God first.

James Gillies

Obviously, the Christian Institute would communicate the effect of the law, which would be that smacking would be a criminal offence.

The Convener

Okay. That draws our first panel session to a close. I thank the witnesses very much for their time and evidence. There will be a brief suspension while the panels swap over.

16:53 Meeting suspended.  



16:58 On resuming—  



The Convener

I welcome everyone back to our second panel session.

I welcome Peter Nimmo, the minister of old high St Stephen’s church, Inverness, and a representative of the church and society council of the Church of Scotland; Mairi Campbell-Jack, the Scottish parliamentary engagement officer of the Quakers in Britain; and Fraser Sutherland, the campaigns and communications manager at the Humanist Society Scotland.

Do you support the aim of the bill, which is to end the physical punishment of children?

Fraser Sutherland (Humanist Society Scotland)

Yes, the Humanist Society Scotland supports the bill. We believe very strongly in human rights, and we believe that the United Nations Universal Declaration of Human Rights, which states that

“All human beings are born free and equal”,

applies equally to children as it does to adults and that the protections under that declaration should apply equally to children as they do to adults.

The Rev Peter Nimmo (Church of Scotland)

Yes, the Church of Scotland supports the aims of the bill.

Mairi Campbell-Jack (Quakers in Britain)

Quakers in Scotland support the bill.

Alex Cole-Hamilton

For the record, I should declare that I am a Quaker.

Thank you very much for coming to see us today. We look forward to hearing your evidence.

I will start where we started with the previous panel—the perceived conflict between parents’ rights and children’s rights. We know that, in international law, children have the right to be free from any form of physical punishment. Is there a real tension there? Where in international law would we find a commensurate right for parents to physically punish their children?

Mairi Campbell-Jack

I think that Quakers would say that seeing it as a children-versus-parents issue is not helpful, as that is very much a lose-lose situation. We do a lot of conflict resolution. We have worked in many communities internationally as well as domestically in an effort to help people to resolve conflicts. Generally, we try to look for a win-win situation. Rather than looking at parents’ rights and children’s rights as being separate, it might be better to include them all in the one group—that of human rights. All humans deserve to be free from violence.

I get that there is a tension. I understand why people are worried about that, and I think that it is very reasonable for people to have questions about it. We hope that, as the scrutiny of the bill proceeds, some of those questions will be answered, and we hope that, if the bill is passed, the Scottish Government will be able to do some education and awareness raising and help people to understand the issues a bit better.

The Rev Peter Nimmo

I agree that it looks as though there is a tension here. However, as a society, we have long accepted that parents’ rights over their children do not exclude the involvement of the rest of the community. In listening to the discussion, I wonder whether we are framing it in terms of a slightly western way of thinking about the nuclear family, when we all have a responsibility to bring up children in a loving and caring environment. It is absolutely accepted that, when things go badly wrong in a family, the state and other actors have a role to play in protecting the most vulnerable in society—and children are among the most vulnerable in society.

Fraser Sutherland

I see no evidence of differences in international law such that we are dealing with some kind of battle between parents and children. Parents are guardians of their children’s rights; they are not arbitrators of what rights those children should enjoy. Children can be among the most vulnerable people in society, and it is right that the state has a role in protecting them. The state also has a role in protecting people with disabilities and dementia. Should we hit those people, too, to help them to learn lessons? I do not think that that is an acceptable approach or that it would be acceptable in public life, so I do not think that it is acceptable that children should be hit in that way, either.

There is a wee bit of confusion in some of the evidence that has been submitted to the committee about the bill interfering with article 8 of the European convention on human rights, which is on family life. There is no clear right in the ECHR to use violence in relation to family life. That is not set out in the framework; it is a bit of red herring that has been deployed. The UNCRC states that parents have a clear role to play in protecting children from violence, not in inflicting it on them.

Alex Cole-Hamilton

That was very helpful. Thank you.

I think that you were present for the interesting discussion that we had with the previous panel about where what the bill proposes fits in the discussion about faith. Given what members of the previous panel said, what do you think that we base our human domestic laws on? Where is the link with faith and scripture? How closely should they mirror one another?

Mairi Campbell-Jack

Quakers are slightly unusual compared with some of the other churches, as we do not believe that the Bible is the infallible word of God that can never be wrong. We consider ourselves to have an orthopraxy rather than an orthodoxy, which means that we do not have some central document from which we take our rules for living our lives. That is not to say that the Bible is not helpful; it is more that we see it as the writings of ancient people who are trying their best to interpret the world, God and their understanding of God, given the knowledge that they have.

Having an orthopraxy gives Quakers flexibility. As we learn more about the world through science and understanding, we can absorb that into the way we choose to live our lives. We absorb what we learn through child psychology, science and the studies that have been done, and we will think about what all of that means for the practice of living our lives instead of having one document that tells us how to behave for ever.

That does not mean that we do not respect other churches’ belief in the Bible or their faith. We very much do—we just choose to see things slightly differently.

Alex Cole-Hamilton

Reverend Nimmo, you are representing the Church of Scotland. Have there been times when you have felt that the Bible led to a basket of laws that we adopted as a society but that we have subsequently set aside because they no longer suit our times or our lives?

The Rev Peter Nimmo

It depends on what you mean about the Bible defining a set of laws. It is my understanding that the background of our own cultural experience is 2,000 years of interpreting the scriptures of the Old and New Testaments. To that extent, there is a Judaeo-Christian undergirding of our society.

However, I think that, as a church, we would always have said that it would be very difficult to say that you had an infallible understanding of those ancient texts. Although we live within the spirit of what we believe to be the word of God as revealed in scripture, there are nevertheless instances throughout history of people making mistakes in their interpretations.

Does that make sense?

Alex Cole-Hamilton

Yes. That was very helpful.

Mr Sutherland, as a humanist you will have your own views about the scriptures. Can you tell us about them?

Fraser Sutherland

Yes. One view that humanists share is that no one faith or belief group should have ultimate authority over the laws of the land. In countries around the world where laws are dictated solely on the basis of legal interpretation, those laws can be really strict, and humanists will stand up for minority faith groups against, for example, blasphemy laws. Using religious texts as a core tenet for shaping human laws is not, I think, a good idea; indeed, a secular approach that divorces religion and belief from the law-making process allows for a society in which everyone, no matter what their religion or belief might be, can approach life in a fair and equal way.

Perhaps at this point I should set out what I mean by secularism, because sometimes there is a bit of deliberate myth making about what it is. People talk about it as if it means removing their right to practise their religion, but that is not what it is. It has three main factors, the first of which is separating religious institutions from the state to ensure that no one religious institution dominates the political sphere.

The second factor is defending people’s freedom of thought, religion and conscience. I am a great defender of that, and I am really passionate about defending people’s right to believe in whatever religion or faith they want to follow and to change their decisions in that respect as their life goes on. I have changed my point of view on these matters in the past, and there are others who have left us to join churches. That sort of thing is really important in an open and free society.

The third factor in secularism is that there be no discrimination of individuals on the basis of their faith or belief. People should not be denied access to services because they are, say, Muslim or Jewish, and they should not be dismissed from a job because their religion does not fit with their employer’s views.

From a secular point of view, we need those three things if we are to have an open and free society. Religious groups should have a voice—and have a voice in Parliament—and should be able to bring forward their views, but that should not be the dominant way in which our laws are informed.

Alex Cole-Hamilton

Thank you.

Mary Fee

Do the witnesses think that the bill has the ability to change the way in which parents discipline their children?

Mairi Campbell-Jack

It is very hard to predict the future. However, after other countries have passed similar bills, there have been changes in how people have parented their children. In France, there has been a drop in the amount of smacking and in the amount of abuse. It seems as though such a bill sends quite a strong signal to people.

The Rev Peter Nimmo

The committee has been looking at the evidence, which suggests that such a legal change has had positive consequences for children and for society in general. If we are interested in ensuring the wellbeing of children, we need to take such evidence very seriously.

Fraser Sutherland

The bill will help with the challenge of violence breeding more violence, for example. The violence reduction unit’s evidence to the committee, which referenced challenging views about violence in society, has been mentioned, and we all know the success that the unit has had in challenging knife crime in Glasgow over the past decade or so, for example. In previous sessions, the committee has heard about the overwhelming amount of published academic research that shows the clear association between harsh physical punishment in the home and negative behavioural outcomes. I encourage the committee to look seriously at the academic research that has been published in that area.

We often hear people claiming—we heard it during the previous session—that they were smacked but are not violent. That is a bit of a straw-man argument. The fact that some people smoke for their entire lives but do not get lung cancer does not mean that we should dismiss the evidence that shows that there is an increased risk of lung cancer among people who smoke. We should not dismiss the evidence just because one person has done something and there have not been negative outcomes. That does not mean that that will apply to everyone.

Mary Fee

Does the bill need to include a bit more clarity about the removal of the defence of reasonable chastisement? The key aim of the bill is to remove that defence. We need to be clear that we are not criminalising people who perhaps give a child a light smack on the hand to protect them; the bill is concerned only with smacks that are given with the intent to cause harm. Does the bill need to include more clarity and more of an explanation of what is reasonable and what we are removing?

Mairi Campbell-Jack

It does. “Reasonable” is a really tricky word. Everyone thinks that they are reasonable, but not everybody is reasonable to everybody else. We can no longer say that the opinion of the man on the Clapham omnibus is everybody’s opinion.

There are many different types of family out there. Families from different cultures might have a completely different idea of what “reasonable” means in relation to child chastisement. Some families will be dealing with children who have a lot of problem behaviours for different reasons, and those families might need to take a slightly different tack from the approach of the well-off, middle-class family down the road with only a couple of kids, who are very well behaved. A one-size-fits-all approach will not fit with modern family life, because we no longer have one type of family. From speaking to Quakers, I know that they are very concerned that parents who are struggling with very difficult circumstances might end up being stigmatised through the bill.

Mary Fee

If an investigation is carried out into the smacking of a child that involves, as you have described, a difficult child from a family with problems, is there a risk that those circumstances will not be taken into account?

Mairi Campbell-Jack

I am not an expert in how such cases are investigated, so I would not want to make a blanket statement about it. If the bill were passed, I hope that our police officers and our social workers would receive full training and that we would employ in those roles people who could make good judgments after considering all the different factors. To a certain extent, no law is perfect, so we need to trust the people in society who are the gatekeepers of our law to do a good job. In relation to the bill, we need to ensure that people receive the resources, the training and the education to enable them to make such decisions.

17:15  



The Rev Peter Nimmo

I agree with all of what Mairi has just said. I would also say that putting this proposed law into action would require the resourcing of parents and families as well as helping the rest of us in the wider community to understand what the law means and that there are alternative types of discipline and punishment. That does not quite answer your question, but it seems to me that that is part of the broader context of coming to a deeper understanding of what is required of us all.

Mary Fee

So, raising awareness of the legislation is key.

The Rev Peter Nimmo

We say in our submission that it is absolutely key. Parents need to understand how their responsibilities have changed in some ways. We need to strengthen family life and enable parents to ensure that children are still being brought up in a structured way—a disciplined way, if you want to call it that—because that is important and it helps children to flourish, but that must happen in a way that does not involve a recourse to physical punishment.

Fraser Sutherland

I do not have much to add to what has been said. I think that removing the defence helps to remove some of the confusion around what is reasonable. The 2003 changes were welcome, as far as they went, but they opened up bit of confusion about what is reasonable. It seemed that, if you really wanted to know what a reasonable chastisement would be, you had to become a legal expert and look at all the case law to decide. Removing the defence sends a clear message, which means that we do not have to define what is meant by reasonable punishment. Instead, we will need to explain the position and raise awareness among the public as a whole.

Fulton MacGregor

Earlier, we heard from the Christian Institute, which also made a written submission. It raised concerns that the removal of the defence of justifiable assault could lead to an increase in anxiety and other issues for children. Have you come across that in your research? What are your thoughts on that?

Mairi Campbell-Jack

Before I wrote our submission, I asked young Quakers in Scotland whether they wanted me to work on it. The answer that I got was a resounding yes. They made it absolutely clear that they wanted this to happen.

I cannot speak for all young people—that is not what I am here to do—but I can speak for the young Quakers in Scotland, who strongly feel that they want this law to be passed. They think that it will make children less anxious and that it might help them know what sort of punishment is wrong and where they can go for help, because that can be confusing for children.

Fulton MacGregor

When we were speaking to the previous panel, we heard about the example of Sweden. Although the evidence has been hard to work out, most of the other examples that we have had suggest that the change has been positive overall in various countries, such as France. Do you have any views in that regard?

The Rev Peter Nimmo

Again, I am not an expert on any of this research. However, in these discussions, we should keep in front of us the fact that we want children to flourish and develop into responsible adults, which means that it is incumbent on all of us to find the best ways to do that. If there is a body of evidence that says that not assaulting children as part of how we discipline them as we bring them up is something that leads to positive results for children and society in general, we should clearly be taking that into account. However, I am tempted to say that it is for legislators to weigh up the evidence around that and decide what to do with it.

Mairi Campbell-Jack

On the point about Sweden, I would want to see a bit more about the research that was referred to before I came to any conclusion, because correlation is not necessarily causality. In our experience, violence is often due to a number of factors, which can be personal, interpersonal, societal and even worldwide, so it is sometimes difficult to pick apart what has led to one act of violence. Some good and deep research would be needed to work out exactly what is going on in Sweden.

Fulton MacGregor

That leads nicely on to the other area that I want to ask about, which is the concern that the committee has heard about the possible criminalisation of loving parents who are just trying to do the best for their children. There is a concern that there could be a whole load of prosecutions. The vast majority of the evidence that we have heard from agencies is that that is unlikely to be the case and that there are already systems in place through the child protection and prosecution processes. Do you have any thoughts on that?

Fraser Sutherland

I do not have anything more than what you have said. Experts have given the committee evidence on where the approach has been trialled elsewhere and the results of lived experience. We cannot rely on pontification. When someone thinks that something will lead to something, we should not just listen to their pontification if the evidence shows completely the opposite. There is a strong line of argument that the bill will criminalise parents, but the bill is clear that it is not introducing a new criminal offence; it is removing a defence.

Fulton MacGregor

Thank you. To put it more simply for the other two panellists: are you concerned that the bill will criminalise parents unnecessarily?

The Rev Peter Nimmo

I am not an expert on the evidence, but I do not think that the evidence is pointing in that way.

The more basic issue is that because of what we have done on rights, children appear to have fewer rights than adults. Because we allow the defence of reasonable chastisement, children are the only group in our society against whom we can use violence, certainly in the home, and have a defence. We do not use violence against criminals. I am old enough to remember when it was done to schoolchildren, but we do not do it to schoolchildren any longer. It seems wrong and strange that we still allow that defence when an act of violence is used against a child within a family.

Mairi Campbell-Jack

It is understandable that parents are concerned about criminalisation and that it is at the forefront of their minds in considering the bill. That is one reason why it would be good to have awareness raising and education. As Peter Nimmo said, work needs to be done with communities and parents to help them to understand what is happening.

We do not believe that we will see a huge rise in the criminalisation of parents. Again, it comes back to the fact that we need to have a certain amount of trust that our social workers and police officers are doing a good job.

Fulton MacGregor

Staying on that point, one issue that was raised by the previous panel—I took a note of which panellist it was at the time, but I cannot remember now—was that the law will perhaps impact mainly on more disadvantaged families. Clearly, the committee would not want that to be the case. Do you have any concerns that, if there is an increase in criminalisation or prosecution, it will most likely be among families who are already struggling? How could that come about?

Mairi Campbell-Jack

I must admit that I had not considered that before the panellist mentioned it but, as soon as he did, I thought, “That’s a really good point.” Sometimes, when laws and other things in society change, the poorest are the hardest and worst hit. That does not mean that they are the only people who are smacking their children; plenty of middle-class and upper-class families do it, too. However, we have an unequal society, and such things impact on people unequally. I understand that part of the scrutiny of the bill is to look at how it would affect people, and I suggest that it would be worth the committee looking into that aspect.

We also suggest looking at families who come to Scotland from different cultures who might find that they are brought to the attention of the authorities more often. Other families who might need extra help are those who are indigenous and are dealing with difficult circumstances—perhaps those with children with difficult behaviours.

Fraser Sutherland

I have nothing to add to that.

Alex Cole-Hamilton

Fraser Sutherland, at the start of your remarks, you made an interesting point about the fact that we do not allow the physical punishment of adults with learning disabilities or dementia who might have the mental age of a child.

We have heard a lot about the use of restraint or physical punishment to warn children about the dangers of hot pans or running out into traffic. Should we liberalise the laws around assault so that we can physically punish adults with dementia or learning disabilities who might put themselves in the same kind of danger?

Fraser Sutherland

No—absolutely not. When it comes to children, we have to follow the evidence. In the 54 other countries in which the law has been changed, has there all of a sudden been an increase in the number of scalds or children running out into the road and being run over by cars? There is no evidence that that has been the case.

We need to lead policy on evidence, not whataboutery. The bill does not class stopping danger as assault. If I saw an adult walking along the street playing a game or texting on their phone and about to walk out into the road, my initial reaction would not be to hit them, but to pull them back from the road. By doing that, I would not be assaulting them, so why would that not be the same for a child?

Once someone has saved a child from danger, can they not have a restorative conversation with them to make them aware of the danger, without using physical violence? I argue that that conversation can be had.

Teachers around Scotland have excellent restorative conversations with pupils every single day. They do not hit pupils—we do not let them do that anymore. That was a fantastic change in the law, which came about because a parent went all the way to the European Court of Human Rights. There is an argument—we heard it from the first panel of witnesses—that the political elite are not listening to the public, but when Grace Campbell started that legal case in 1983, the political elite were not listening to her or to the thoughts of children and other parents. She had to take the legal case all the way to Strasbourg to enforce human rights.

Perhaps one of the reasons why the politicians of the time did not change the law on physical punishment in schools was that opinion polls told them not to. That is another argument that is often used—the public does not want a change, so we should not do it. In 1983, the public did not support removing the belt from schools, but the courts forced schools to do so, because it was a fundamental breach of human rights.

Alex Cole-Hamilton

That is a really interesting point, which we touched on with the previous panel. Should Parliament always follow public opinion, or should it seek to lead and change it?

Fraser Sutherland

If you want to just follow public opinion, you might as well dissolve Parliament and have referendums every day.

The Rev Peter Nimmo

The Parliament is a deliberative assembly. We elect you to do exactly what you are doing now, which is to examine the evidence and hear various points of view. At times, Parliament leads public opinion, but sometimes it is behind it. In a democracy, we want to hear the voices of those who are saying what is perhaps radical now, but might eventually become something that the rest of us catch up with.

Mairi Campbell-Jack

I agree with my fellow panellists. The smoking ban is a good example. I worked on social research on the smoking ban and, at that time, people were saying all sorts of things, such as, “We will have Nazis coming into the country next,” and, “This is against my human rights.” However, the day that that law came into effect, nothing happened—everybody just obeyed it. We adapt very quickly. With that law, there was a lot of education and people really knew about it.

If you are leading, there is a job to lead in a way that is kind and compassionate. We cannot always go with public opinion, but it is really important to make sure that everybody is listened to.

Gail Ross

I thank the witnesses for their evidence.

We have received written evidence and heard from the first panel that legislation is unnecessary and that we should just run an education and awareness-raising campaign. What are your thoughts on that?

Mairi Campbell-Jack

We would probably go for both aspects. Legislation sends an incredibly strong message. In research that was done in Glasgow, about 66 per cent of parents said that, if the bill was passed, they would smack less. That shows that the bill is sending people the message that Scotland is considering the view that smacking is no longer acceptable. However, that must go hand in hand with education and awareness raising.

17:30  



The Rev Peter Nimmo

I agree, and I strengthen the point by saying that legislation would signal that we find violence increasingly unacceptable. We are struggling with violence in our communities, although we have begun to see ways of addressing it—the violence reduction unit in Glasgow has been mentioned, and its approach is exciting and interesting. Changing the law would reinforce the thought that, on the whole, violence is not a solution to anything. As Christian people, we agree with that.

Fraser Sutherland

I do not have a huge amount to add to what I said in answering a question from Mary Fee. If anything, changing the law would make the boundaries much clearer. Under the 2003 act, there is perhaps a bit of confusion about what is reasonable. The bill would send a strong message, although I do not disagree at all with the other panel members that education would be needed, as with any new legislation that is brought in. The smoking ban has been talked about; when that was to be introduced, a lot of awareness raising was done around the date when it would come in and what it would mean for pubs and clubs around the country. Any change in the law needs to be backed by education.

Gail Ross

I will dig into that a bit further. What would an education and awareness-raising campaign look like?

Mairi Campbell-Jack

The campaign would need to speak to several audiences. I would like a campaign that was aimed at children, but it would also be essential to have campaigns aimed at parents and grandparents and at carers who are not relatives. It would also be vital to involve organisations that work with children, such as Children 1st, the Children and Young People’s Commissioner Scotland and Young Scot.

The Rev Peter Nimmo

Faith communities would have a role to play. In our report to our General Assembly in 2016, in which we suggested that the General Assembly should support such a change in the law, we made it clear that our church would seek to promote resources to support the development of a non-violent approach to the upbringing of children. We might produce those resources ourselves or we might—this is probably the way that we would go, as we do not necessarily have the resources to produce our own resources—use resources from other denominations or other places.

To parents who worry that the approach might not be in parallel with their faith commitments, we say that our denomination thinks—and other faith communities could feel the same way—that it is possible to explain why the change and the promotion of a non-violent approach to parenting resonate with their values as part of a faith community. We certainly felt that such a change in the law would resonate in that way, and our General Assembly agreed with us. The approach is fine grained; there is the ability to say to people with different faith outlooks and philosophies that such a change would be in line with their most deeply held values.

Fraser Sutherland

I agree with Mairi Campbell-Jack. Some education resources or methods should be aimed at children and young people in particular. However, there are already a lot of support mechanisms for soon-to-be parents or people who have just had children—particularly young parents—and quite a lot of connections with health services and other groups. If you are trying to get the message out, you may want to do that through the networks that families already touch base with. Faith communities are an important part of that because a lot of people come into contact with them. Within the national health service, for example, there is already a really good connection with health workers that we could use to get the message out.

Gordon Lindhurst (Lothian) (Con)

I think that all the panellists will be aware that the European Court of Human Rights and, indeed, the United Kingdom Supreme Court have confirmed that people have the right to live out their faith, religion or beliefs in a real way—not just to hold those beliefs and quietly think them but to live them out. Of course, that includes what happens in the family—in the home—which is particularly protected under the human rights convention. Unlike the smoking ban, which did not apply to private homes, the understanding is that the bill will.

There are different views within religion. Some Christians, such as the Rev Peter Nimmo, sincerely believe that smacking is not the right thing to do; other Christians, such as the Rev Richard Ross, take a different view. The courts have also indicated that it is an individual’s right to live out their religion as they believe it, not as the majority of people who share their religion believe it.

I think that all three panellists agree with what they understand the bill is trying to do. Where is the protection in the bill for someone such as the Rev Richard Ross, who holds an equally sincere but different viewpoint? I am sure that the Rev Peter Nimmo will agree that Christians may hold different views on particular issues. Some, such as the Quakers, may be conscientious objectors, whereas others are not. Where is the protection in the bill and, if it is not there, should it be put in?

The Rev Peter Nimmo

It is not unusual for the state or wider society to put limits on how people express their religious beliefs. If, as a society, we think that certain practices that may seem to have a deep religious basis nevertheless do not promote the wellbeing of society as a whole, of course the state has a right to do something. In a democracy, we go about that in a democratic way.

Yes, we have rights but if I was to say that I had a conscientious objection to how the Government was spending my taxes and that I would therefore not be paying my taxes, the state—correctly—would have something to say about that. There are limits on what we can do and that is because, as we try to live out whatever rights we think we have, we may well be impinging on the rights of others.

We are talking about children. Children are vulnerable and they need to be protected. If we have come to a view that violence of any kind against children, for whatever reason, is just not good for them, we should certainly legislate on that. That may impinge on what someone else thinks are their rights, but we are talking about the right of a child not to suffer something that might be quite traumatic, even if we did not mean it to be traumatic. We may think of a slap on the ear as not very important, but the research shows, and the experience is, that that is not good for the child or for society in general, so there is that conflict or tension. As a society, we must work our way around that tension, and we have been doing that for centuries.

Mairi Campbell-Jack

I agree with Mr Nimmo. As we develop our understanding of rights, there will be tricky questions and situations that we will have to tease out as a society, and we will have to work out how we are going to deal with them. The important point is that, as Mr Nimmo said, we are talking about children, and their vulnerability must be put at the centre of this.

To conflate the issue with something else and exaggerate it, I note that somebody might sincerely believe that their God tells them to kill people, but that does not mean that we would sit there and say, “You’re right—your sincere religious belief trumps other people’s right to life.” When we are talking about actual harm that is being done—and there is quite a lot of evidence that smacking harms not only children, but parents and their relationship with their children—that must be the first consideration.

Fraser Sutherland

Mr Lindhurst is right to point out that there is a right to freedom of thought, religion and belief under European human rights law, but it is limited by the public order acts and the rights of others. Case law at the European Court of Human Rights shows that that right can be restricted where there is a need to protect others’ rights and public order. The Parliament can decide that the physical punishment of children impacts on children’s rights, so the defence that someone’s religion tells them that it is okay does not stand up to scrutiny.

Gordon Lindhurst

However, it is not quite as simple as just saying that the child has rights, because one of those rights is their right to be raised in accordance with the religion of their family. There are rights and responsibilities on both sides—the parents’ side and the children’s side. I hope that no one would disagree with that. If it is a question of belief, are you saying, ultimately, that there should be no protection for those who believe that the approach in the bill is incorrect? Is that not the real question? Should the child should have no right to be raised in accordance with their religious faith—or, it would be better to say, that of their family?

The Rev Peter Nimmo

I reiterate the general principle that everyone, including children, has a right to live out a particular religion or philosophy. That is a hard-won right and it is very important to religious communities. However, there is a tension between that, even in a situation where a child thought that smacking was good for them, and the body of evidence that smacking is harmful and that the harm outweighs the person’s rights. I am not sure that it would be a very significant erosion of people’s religious rights to take away from them the possibility of their using corporal punishment against their children. However, that may be a subjective view.

The Convener

Do the other panellists wish to add anything?

Mairi Campbell-Jack

I agree with Mr Nimmo.

Fraser Sutherland

All that I would say is that equalities and human rights legislation protects people from unfair treatment based on their age. We should not go down the road of saying that we should allow young people to be hit because they are young people and their parents have decided that that is within their faith protection so young people’s other rights are eroded. I am afraid that there is no hierarchy of rights whereby freedom of religion and belief protects people and erodes young people’s right to be free from violence, for example.

The Convener

I thank all the members of our panel for their time and their evidence, which has been very helpful to us in our considerations.

Our next meeting will be on 21 March, when we will continue to take evidence on the bill. I thank the people on Skye for their hospitality and their help today. We have had a very informative and interesting day.

Meeting closed at 17:45.  



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Fourth meeting transcript

The Convener (Ruth Maguire)

Welcome to the committee’s eighth meeting in 2019. I ask everyone to ensure that mobile devices are switched to silent. I welcome Gordon Lindhurst MSP and John Finnie MSP, who have joined us this morning.

Agenda item 1 is our fourth evidence session on the Children (Equal Protection from Assault) (Scotland) Bill. I welcome our first panel: Dr Lucy Reynolds, consultant paediatrician, Royal College of Paediatrics and Child Health; Jillian van Turnhout, a former Irish senator; Matthew Sweeney, policy officer, children and young people, Convention of Scottish Local Authorities; and Andy Jeffries, senior manager, children and families, City of Edinburgh Council, who is representing Social Work Scotland.

I will open by asking whether you support the bill’s aims to bring an end to the physical punishment of children.

Dr Lucy Reynolds (Royal College of Paediatrics and Child Health)

Absolutely, yes.

Jillian van Turnhout

Absolutely. I believe in children growing up in a world that is free from violence. That is why I brought the change about in Ireland.

Andy Jeffries (Social Work Scotland)

Absolutely. Experience in other countries that have implemented this approach is a reduction in violence to children. The bill is entirely consistent with the children’s rights approach of this Parliament.

Matthew Sweeney (Convention of Scottish Local Authorities)

Absolutely. COSLA members are committed to the principles behind the bill. It fits within our wider work as co-signatories to the national performance framework’s national outcomes that young people

“grow up loved, safe and respected”

and realise their

“full potential”,

and it aligns with the principles behind getting it right for every child.

The Convener

Thank you. Why do you think that public opinion is so mixed on this topic?

Dr Reynolds

When I discuss this with other people, some of them say, “It never did me any harm,” or, “This is what my parents did and therefore it is what I should do.” Why would a parent keep abreast of all the evidence that continually comes in? The Royal College of Paediatrics and Child Health did not come out with our position statement on corporal punishment until 2009—10 years ago—and we have not made a big effort on an information campaign to advise parents. That is partly because we were rather stymied by the fact that the law gives an opposite view to what we would put across as the public health message. How can we tell parents and caregivers that there is no good, reasonable, justifiable reason to hit a child and there are plenty of good, justifiable, reasonable reasons not to—and get that public health message across effectively—when we have a law that says that it is justifiable?

Jillian van Turnhout

That question was also asked in Ireland. The issue brings to the fore how I feel that I was raised. My mother was in the Parliament when I brought through the change in law, because I was raised being told, “You’re not too old for the wooden spoon.” My changing the law was not a judgment in any way on how my parents raised me. Luckily, I was not hit—just to put that on the record—but I was always threatened with it.

The issue is about how parenting takes place today. As legislators, we need to ensure that we bring that to the fore. On the question about always looking to public opinion, when we changed the law in Ireland, we realised that law was catching up with how parents are parenting their children today.

Andy Jeffries

There are a couple of related fears: one is about disproportionate interference in family life and the other is about misusing resources. In other words, some people are worried that parents and children will be brought into a child protection system and brought into prosecutions, when that does not need to happen.

In my operational job in Edinburgh, every week, I quality assure every child protection concern that comes through the multiagency process with senior colleagues in Police Scotland and the national health service. We always look to satisfy ourselves that we are dealing with the right things and have taken a proportionate response.

We already have quite a low threshold for dealing with assault against children as a child protection concern. It is correct to have that, but we try to take a GIRFEC approach with those families, so we are not bringing them to child protection case conferences or prosecuting parents in situations in which a relationship is struggling, there is a lack of capacity or there is a set of stresses within the family that has led to someone losing control. We need to get alongside those families and do the right thing with them rather than overintervening with them. People will not have social workers at their door who do not need to be there, because we are too busy for that.

Mary Fee (West Scotland) (Lab)

I have a specific question for Jillian van Turnhout. You spoke about what happened in Ireland and the fact that you were instrumental in bringing about that change. You said that the change involved the law catching up with public opinion. Could you give us a bit more background about how you came to that decision, what the public view was, the level of dissenting voices against the legislative change and what happened afterwards?

Jillian van Turnhout

In Ireland, we had a solid evidence base in relation to how we had failed vulnerable children. With regard to the seeds of the change in the law, I would look at the Kilkenny incest inquiry in 1996. The state has commissioned 19 reports on how we failed children. The report of the Ryan commission in 2009 was quite fundamental, because it examined institutional abuse between 1936 and 2000. We had a difficult past to face up to—that was the backdrop. In totality, those reports lifted a veil. We could see what had happened to children and what had happened in families. It was a terrain that was closely guarded.

As a start, we had a referendum in November 2012 to uphold children’s rights in the constitution, because the constitution contained an imbalance, in that there was a higher threshold for intervention in situations involving children with married parents than there was for situations involving children whose parents were not married. We had to ensure that we put into our constitution a clear articulation that all children are equal before the law. The referendum result was challenged in our Supreme Court—I am trying to give you a brief synopsis, so bear with me. The challenge took two years to go through the courts, but it was not upheld. In May 2015, it was ruled that our children’s rights would be upheld in our constitution. The resistance built up more in relation to the referendum, and the repeal of the law in relation to the common-law defence of reasonable chastisement was an outcome of the referendum and all the history that we had to redress. Irish people wanted to ensure that we did not have laws that in any way permitted us to be violent towards children.

The Convener

We have been joined by Jean Miller, a headteacher who is here to represent the Educational Institute of Scotland. I will give her an opportunity to answer the first couple of questions that we asked of the other witnesses.

Do you support the aims of the bill, which involve stopping the physical punishment of children?

Jean Miller (Educational Institute of Scotland)

I fully support the aims of the bill.

The Convener

Do you have any reflections on why public opinion is so mixed on the matter?

Jean Miller

Sometimes, change takes time. We are often brought up thinking that certain things are right and appropriate, and, as we have seen in our schools over many years, bringing about substantial cultural change can take time. However, with many things in life, the more that evidence is presented to people, the more that people get on board. Part of my role as a headteacher in a secondary school is about working with parents and carers to ensure that they fully understand what we see as being positive interactions with young people. Building positive relationships is at the heart of everything that we do in schools. If we do not just pass legislation but work with people to convince them of its merits, that will go a long way towards changing many of the cultural norms that exist.

Mary Fee

Jillian van Turnhout, is there anything else that you would like to expand on?

Jillian van Turnhout

I believe that Lucy Reynolds wants to jump in, if it is okay with the convener.

Dr Reynolds

You have probably all read “Equally Protected? A review of the evidence on the physical punishment of children”. You may remember that it contained a big population study that was done in Sweden, France, Austria, Germany and Spain, in which a population of adults was asked whether they considered that hitting a child on the face was a violent act. In Sweden, where for many years the law had been that one should not hit children, and where that was well known by the public, 85 per cent of respondents considered hitting a child on the face to be a violent act. In Austria, Germany and Spain, which were in the process of conducting public health information campaigns and/or had legislated—they were part of the way through the process of change—50 to 60 per cent of adults felt that way. In France, where there had been no public health campaign, no move towards legislating and no discussion, only 30 per cent of adults thought that hitting a child on the face was a violent act. Although attitudes have changed without legislation or public information campaigns, both are effective in changing them further.

Mary Fee

I want to come back to Jillian van Turnhout. I am interested in public perception before you introduced the legislation. You said that you were catching up with public opinion. Was there resistance to the legislation as it progressed through the Irish Parliament?

Jillian van Turnhout

There was some resistance, but no organised groups or civil society organisations spoke against it. Individuals spoke against the change in legislation. We did not have the same process of pre-legislative scrutiny that you are conducting here. In fact, the day that I walked into the chamber, I did not know whether I had a single colleague with me on the change of law. However, I went in knowing that even if I was the only person to say that it is not okay to hit a child, children in Ireland would know that somebody believed that it is not okay for them to be hit. Obviously, I wanted to change the law. Much to my surprise, by not calling for a vote on the bill that I introduced at any stage, every single member of the Irish Parliament chose to support it.

For me, it was a powerful collective moment. As many of my colleagues said, it was powerful that we made the change in law on the eve of 2016, because it marked 100 years since our proclamation of the Republic, in which we said that we would cherish all the children equally. That resonated for us in Ireland. Even our Prime Minister, Taoiseach Enda Kenny, chose to speak in the chamber in favour of the change in law, so we had cross-party support.

I am not saying that it was easy. To be very clear, I was pulled aside by my colleagues, some civil society organisations and members of the public—whether they totally agreed or did not agree—who said, “The time is not right. We need to do X, Y and Z in order to be ready for the change in law, so let’s not do it yet. Now is not the time.”

It was fascinating to me—it really was a light-bulb moment—that the second that we changed our law, the same colleagues looked me in the eye and said, without any irony, “Why didn’t we do this years ago? It makes so much sense.” I can still picture them standing there saying that. As we have seen, when as legislators we are willing to step forward to change such laws—whether on smoking in public places or seat belts—and ensure that our laws protect all our citizens, the effect is amazing. The public respond positively.

Mary Fee

Did the public respond positively?

Jillian van Turnhout

Absolutely. If you talk to the public now, they believe that the change in law happened a long time ago. In advance of coming to the committee this week, I contacted different civil society organisations and state agencies, and they are all still positive about the clarity that was brought by the change in law.

It has helped social workers with their relationships with parents. Social workers tell me that previously when they met parents and the moral discussion started about whether a parent can or cannot hit their child, they had to say, “Well, I don’t think it’s a good idea,” but they could not be authoritative about that, whereas now they can say, “You’re not allowed to hit your children, so let’s talk about what you can do. Let’s talk about positive parenting.” The change in the law changed the dynamic of the relationship.

Mary Fee

That is helpful.

09:15  



Alex Cole-Hamilton (Edinburgh Western) (LD)

I thank the panel members for coming today. Following Mary Fee’s questions, I have a couple of questions for Jillian van Turnhout and a couple more that I hope that all the panel members will answer.

Jillian, we have heard a lot of evidence about the potential negative outcomes of removing physical punishment from the home, one of which is to do with the protection element, whereby parents think that they should retain the right to physically chastise their children for their own good, for example if a child is about to pull a pan of boiling water over their head or run out into traffic. Have you seen a massive increase in injuries by boiling water or people running into traffic since you banned smacking?

Jillian van Turnhout

No, we have not. Equally, we have not seen a dramatic increase in prosecution of parents. Let me absolutely clear on that.

The running-out-into-traffic argument was used in Ireland. Someone on the radio helpfully gave the example of her grandmother, who has Alzheimer’s. She said that she would not think to hit her grandmother if she ran out into traffic, so why would we choose to hit someone of similar cognitive ability but who was smaller? As I debated the law in Ireland, I started to think about what I would think if I had just landed in Ireland and was trying to understand the law. Our law was saying, basically, “You can hit someone as long as they are smaller than you and more vulnerable than you.”

We are the rational adults; we are supposed to act rationally, and we have to think about the lessons that we are teaching to children. When people give examples of hitting children, they portray it as happening in a very calm moment, when someone chooses to discipline their child in that way. It does not happen in a calm moment; it happens when we are being irrational. We have this invisible line in our heads, and we say, “I know the difference between a smack and a whack.” We do not know the difference.

If Lucy Reynolds or Andy Jeffries says something in a meeting that annoys me, I do not immediately think, “I’ll give them a bit of a whack, because I don’t agree with them.” That is not acceptable. It is not on. Why is it acceptable when it is a child? What are we telling the child? We are saying, “This is how you solve a problem. Don’t discuss it. Don’t learn to calm down. Don’t learn to de-escalate.” I have thumped the ground myself when I have been annoyed, because I have had to learn those lessons in life. It is about helping children acquire the critical life skills of how we problem solve and deal with issues.

We know that when a child is hit, they immediately forget everything that happened beforehand, because the person whom they love and cherish has hit them. There is no connection to what the child did.

Alex Cole-Hamilton

This afternoon, we will hear from an American academic who is very much opposed to the bill, Professor Larzelere. He points to a correlation in Sweden between negative social outcomes and the removal of the parent’s right to chastise. Indeed, he points to a rather extreme statistic of a 73-fold increase in the number of juvenile rapes in Sweden since 1979, when the ban came in. He said in his submission:

“Although increased willingness to report rapes may have accounted for part of these increases, some of this 73-fold increase is likely because a small, but increasing number of boys never learn to accept ‘No’ from their mothers”.

Have you seen anything like that in Ireland? Is there any correlation between the removal of physical punishment and an increase in juvenile violence?

Jillian van Turnhout

No. There is absolutely no evidence of that. As part of my work, I have worked with the Council of the Baltic Sea States, which includes Sweden and has done considerable work on violence against children. I have heard those—I will say—spurious arguments being put forward, and there is no evidence for them. I have met people in Sweden, including police, social workers and practitioners on the ground, and there is no evidence for those arguments.

Alex Cole-Hamilton

Do the other panel members want to comment on the questions I asked Jillian van Turnhout?

Dr Reynolds

As well as being a paediatrician in Glasgow and representing the 1,000 paediatricians who are members of the Royal College of Paediatrics and Child Health in Scotland, I am a member of the International Society for Social Pediatrics and Child Health, which started off in Sweden but is now an international organisation. We have a big email discussion group and whenever I have posted things in relation to equal protection for children, no paediatrician in any of the countries that have fully protected their children under the law has ever expressed any regrets.

Staffan Janson, a paediatrician from Sweden, has spoken at the Scottish Parliament, I think. A few years ago, we had a meeting of the International Society for Social Pediatrics and Child Health in St Andrews and it was listening to Staffan that started me thinking that, as a paediatrician, I had a duty to do more and needed to look into the evidence. I hear from paediatricians in New Zealand, Sweden, Iceland, Spain, Germany and Austria, and all of them have absolutely no regret about changing the law. They are looking to us to be next. When I post messages, there is a paediatrician in Japan who asks what we are doing. The countries that have not yet changed, including down south, Wales and so on, are all looking to us in Scotland to protect children equally in the hope that they can follow on.

Andy Jeffries

I want to make a point about the difference between hitting and restraint, which relates to Alex Cole-Hamilton’s first question. The first example that he gave was of a child pulling over a pan of boiling water. You do not keep children safe by hitting them; you manage the environment in a way that keeps them safe. Therefore, you do not leave that pan of boiling water but are with it, in front of the child, and it is at a height that the child cannot reach—that kind of thing. You do not stop a child running into traffic by slapping them, but put yourself between the child and the traffic or put an arm out. That is an important distinction. Restraint is sometimes necessary for the safety of the child or somebody else—if children are punching each other you would put yourself between them—but that is not the same as hitting a child, which is the bit that we are saying is inconsistent with children’s rights.

Dr Reynolds

I was picking up on the latter point. However, on that earlier point, as a developmental paediatrician I should say something about the way that children learn. From birth, children learn by mimicry. YouTube is brilliant. If you look on it, you can see little clips of newborn babies. They cannot focus very well, so you have to do exaggerated facial expressions, but if you get the attention of a newborn at the right distance and start doing exaggerated facial expressions such as sticking out your tongue, they will do it. It is magic! Well, it is not magic; it is science, but they do it.

Also, you should do a search on YouTube for Bandura’s Bobo doll experiment. Alfred Bandura was a child psychologist. The experiment involves two groups of children and a room full of a variety of toys. Before they go into the room, one set of children is shown some film of an adult picking up a toy mallet and whacking nine bells out of a kind of clown doll. The children who have not seen the video do not whack the clown when they go into the room, but look at all the different toys and play with them. However, the ones who have seen the video are much more likely to go in, pick up a mallet and whack the doll. What you can see on YouTube is actually very distressing; lovely little girls hit that thing because they have seen it done.

Children learn by mimicry, and if you hit children you are teaching them to expect either to dominate or to be dominated through physical violence. I do not want our children to be taught that. Also, since my specialty is developmental paediatrics and disability, I point out that when people realised that adults with learning disabilities were being hit at Winterbourne View, there was universal public outcry. If the people with learning difficulties had been 15, would it have been okay to hit them? Would it have been okay if they were 12, nine, five or three? At what age do you think I can tell that a child has a learning disability, autism or whatever problem it might be? It is not usually when they are three, yet when we look at cohort studies such as “Growing up in Scotland” and the millennium cohort study, we see that the peak age for hitting is three.

Is it a tap, a thump, a hit, a whack or a smack? Also, what is the developmental potential of the person you are hitting? Hitting is an inappropriate way of trying to manage a child’s behaviour, and it does not work to improve it. It can lead to longstanding difficulties with aggressive and antisocial behaviours or to problems with self-esteem and depression. There are no good arguments for doing it. It is like saying, “My child shouldn’t wear a seat belt.” There is every reason to protect them.

Mary Fee

I am grateful for the information that you have given us, Dr Reynolds, because my next question is about whether the impact of hitting a child is long term or short term. What is the difference in their behaviour? You have spoken about that to some degree. Do you want to add anything about the long-term physical and mental impacts of hitting a child? The rest of the panel may want to comment as well.

Dr Reynolds

It is important to realise that the studies, such as the systematic review, were not about hitting at the level at which it causes obvious injury but about day-to-day hitting—what you might describe as smacking.

I know that you have heard from academics already, so I am a bit hesitant about going into research evidence. However, the “Growing up in Scotland” study asked the parents or main caregivers of two-year-olds—it excluded two-year-olds who already had any kind of behavioural difficulties—whether they sometimes smacked or hit their children. The study followed that cohort, and, when they reached the age of four, it compared the two sets of four-year-olds. The strengths and difficulties questionnaire found that, at the age of four, the ones who had sometimes been smacked were more than twice as likely to have some sort of behavioural difficulties.

In studies that look at children who already have behavioural problems, the interventions are more likely to be successful in reducing aggressive behaviours when there is a lower level of physical punishment at the baseline and the interventions reduce that level of physical punishment.

It would be expensive to follow people to the age of 25, 30, 40 or whatever, so I will move to anecdotes. I do not remember individual instances of being smacked—they were very rare—but I remember feeling a deep sense of injustice when it happened. That is all I remember. Speaking to friends who were—

The Convener

Dr Reynolds—

Dr Reynolds

Sorry, am I going off topic?

The Convener

No, no—not at all. I might just bring in some of the other panel members to give some reflections as well.

Dr Reynolds

Okay. I will go back to practice. Parents say things to me such as, “My mother said that, if a child bites, you should bite him back, so he knows what it feels like.” That shows a deep misunderstanding of what a child would learn from that, but that is the kind of thing that I hear every day.

The Convener

Do any other panel members have reflections to add?

Jean Miller

I work in an environment in which we are, rightly, not allowed to hit children. However, when I was at secondary school, there was the belt—there was corporal punishment. There was a level of fear in schools at that time, which led to quite a lot of disengagement on the part of some young people. We now know much more about the best ways for children and young people to learn. Good relationships, kindness, caring and so on are at the heart of good learning. You will not have that if you in any way promote an education system in which you allow violence.

There was a question about restraint and violence. I was in a home economics classroom yesterday, with 20 teenagers making cakes. There were cookers on and knives lying around, and so on, but we teach them how to be in a safe environment. We talk to those children and young people who find it difficult to self-regulate about the implications of any kind of poor behaviour in that environment and the importance of health and safety.

It goes back to the mantra that if we build good relationships and teach children and young people what is right and wrong and how to behave, we move away from an environment that has anything at all to do with violence.

The Convener

We have only until about five past 10, so we will move on.

Dr Reynolds

Sorry.

The Convener

Do not apologise—it is an important and interesting topic.

09:30  



Annie Wells (Glasgow) (Con)

As we have heard, there is a lot of public interest in the bill, and many individuals have raised concerns about it. Do you think that the bill will criminalise parents and lead to an increase in the number of prosecutions? If so, are you aware of any evidence of that?

Andy Jeffries

As I said, my experience of dealing with child protection in Edinburgh is that, where harm has occurred, we try to get alongside families rather than criminalise them and overproceduralise things. In my experience, it is very rare for a case in which a parent has assaulted a child to proceed to prosecution unless there is evidence of real intent to harm or something that we are very worried about. With most parents who hit children, there has been a loss of control, a poor relationship and stress, and I am clear that we need to help them with those things rather than criminalise them.

Jillian van Turnhout

I can speak about the Irish experience. The reason why I chose the legislation that I chose was that there were no sanctions in it. To me, parents have the toughest job in the world, but they also have the most rewarding job in the world. As a society, we need to help parents. Going back to the previous question, we know from research that hitting children either has no effect or has a negative effect. I felt that, as a legislator, I had a responsibility to support parents in their important role and to ensure that our laws reflect what works.

In relation to criminalising, in advance of the meeting, I once again contacted our Child and Family Agency, which is our body for social workers and engagement with parents and families. For reasons to do with our historical past, the agency is relatively new—it started on 1 January 2014. It has seen a slight increase in the criminalising of parents, but it believes that that is not to do with the change in the law and is more about the fact that there is a new agency that is dedicated to supporting children and families.

The Office of the Director of Public Prosecutions does not keep statistics of that nature, but it has checked and has found no evidence of any increase in the number of prosecutions. Equally, An Garda Síochána, which is our police service, has no evidence of any increase in the criminalising of parents. When I contacted those bodies, each of them used the word “clarity”—they said that the law had brought clarity and helped them in their work.

Dr Reynolds

I will try to be brief.

For paediatricians, the bill will not change the threshold at which child protection procedures are implemented. It is very much a public health measure. Sometimes, changing the law is the most effective way of effecting public health change. I always use the analogy of the smoking ban. As someone who goes to lots of gigs where you are listening to music in the middle of a crowd, my experience is that, before the ban, it was horrible to always go home with smoky hair and clothes. Now that the ban is in place, people sometimes light up in the middle of a crowd but I do not dial 999 or try to get out of the crowd to call a policeman; I just say, “Sorry, but could you stop doing that?” I know that the force of public opinion among those around me will be with me and that the person will stop. Since the ban came in, I have never had a problem with asking someone to stop smoking.

Annie Wells

There is also concern that the bill will interfere in private family life. Is that concern justified?

Dr Reynolds

Is saying that people should put a seat belt on their child when they put them in the car interfering with family life? In the past, people might have been able to smack their servant or their wife. Why is it okay to interfere in family life to protect women and adults but not to protect children?

Andy Jeffries

I agree. Children and adults need equal protection. We do not intervene disproportionately. We try to make the best use of resources by doing what is needed and no more than that, at the earliest possible stage.

No agency is in the business of wanting to interfere. As I said, we are too busy doing things where there is a need for us to intervene. I am not worried about that. This is a simple case of children having equal rights. That is not an interference in family life; it is about ensuring that everyone has the same protection.

Jean Miller

In education, we promote UNICEF’s rights-respecting schools initiative—I am wearing my UNICEF badge with pride today. We also promote UNICEF’s position on the right of children and young people to have their voices heard. You cannot say that that stops at the school gate; it has to go beyond that. Children should feel safe in all environments.

Jillian van Turnhout

It is not about interfering in family life; it is about ensuring that children can live in a world that is free from violence. That includes their own home, which should be the safest place. Any exposure to violence, whether it is domestic violence or hitting a child, tells children that some level of violence is acceptable.

As a corollary to the previous question—I want to ensure that I answer your question with integrity—since the law changed, there has been one prosecution. In that case, a member of the public reported witnessing a child being quite severely hit in a car park, and it turned out that the child was being significantly abused. That member of the public cited the change in law as having given them the courage to say that what they saw was not okay.

The issue is not about us, as a society, ensuring that things are right. If I see a parent having a difficult moment with their child in a supermarket because of where the sweets are displayed, I do not immediately jump in to criticise the parent; I think of ways in which I can calm the situation. I will usually be heard muttering, “It’s disgraceful, the way they put the sweets out there at a child’s eye level.”

The change in the law in Ireland was about us, as a society, taking responsibility and supporting parents in their role. We know that hitting does not work, so let us talk about what actually works and support parents in the important role that they play.

Annie Wells

Would it be different if there were sanctions?

Jillian van Turnhout

There are tried and tested laws of assault and child abuse. The change in the law was to do with the fact that it is quite archaic that, in relation to a child, a threshold must be passed before those laws can apply. It clearly involves removing the defence that came from our shared common law; it is not about putting in place any other burdens, because those already exist.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

We have heard a concern that if there was an increase in the number of prosecutions, there would be an increase in pressure on public services. Jillian van Turnhout said that there has been no such increase in Ireland—she mentioned that there has been only one prosecution. For the record, do you think that there will be any increase in the burden on public services should the bill be passed?

Matthew Sweeney

COSLA’s view is that there is probably a bit more work to be done to understand what the impact on local government will be. Currently, the financial memorandum suggests that everything can be dealt with within the current costs, but I think there is more to be done through the Scottish Government and local government working together to bottom out what the costs will be. I do not think that the costs will be prohibitively high, but we need a deeper understanding of what they will look like.

Gail Ross

I am going to ask about the financial memorandum. John Finnie, the bill’s proposer, calculates that the cost of the policy will be around £300,000. However, the Scottish Government has countered that with the figure of £20,000. That is quite a big disparity. What further scrutiny needs to be done to satisfy local authorities that we are providing the funds that we will need to see the policy through?

Matthew Sweeney

There needs to be more thought about what the additional costs are likely to be. Obviously, there might be some additional costs in relation to children and family social work. Andy Jeffries can talk about what that might look like in practice. Some things that might need to be considered further are what promotion would look like and whether we would want that to be done at a local level. Local authorities have effective ins with communities and, if we want to promote the change in the law at a local level, additional resources for councils might help with that. There also needs to be some thought about what type of support we would like to provide for families, such as support with alternative parenting strategies, and about how we can support local authorities to enable them to do that.

The Convener

I will press you a little bit on that. We heard from Andy Jeffries there that there will not be a substantial change, because social workers will still be working alongside families. The bill intends to provide clarity. What additional costs do you think there will be to children and family services in local authorities?

Matthew Sweeney

What I said is based on the international evidence, which has broadly shown that there has been a slight increase in reporting but not in the number of prosecutions.

Dr Reynolds

Paediatricians feel that it is important to make an initial investment in a public information campaign. The timing is very good in that there has been recent investment in health visiting services, so people will be there to support families who are asking about the legislation and about appropriate methods of supporting a child and managing their behaviours.

You will know that the Royal College of Psychiatrists in Scotland was entirely supportive of the bill at the consultation stage because, when children have significant emotional or behavioural difficulties, psychiatrists are the people who see those children in the longer term. So, in the longer term, we would expect some savings.

Andy Jeffries

I made a point about much of this being core business, but I should point out the distinction between my two roles. On the one hand, I am representing Social Work Scotland, but I have also talked about my work in City of Edinburgh Council, and I will not be popular with anybody in either place if I do not make that distinction.

Social Work Scotland’s position is similar to COSLA’s position in that we are saying that a more detailed financial impact assessment is in order. It is not necessarily just about more social workers knocking on doors. Getting this right needs a number of things to be in place, including a communications campaign and parenting support. There might need to be consideration of communities that are harder to reach, and the message will be more difficult to get across in some parts of the community than in others. We might also want to engage with community groups and faith groups. That kind of work needs to be done to help the proposed legislation to be effective right across the country. It is not just me saying, “I need another social worker for these six extra cases.” The work will be broader than that, which is why we are saying that the financial impact needs to be assessed in a wee bit more detail.

That is just a note of caution, given diminishing resources across the board.

The Convener

I presume that you are already working with those communities, so it is not brand new work.

Andy Jeffries

No.

Jillian van Turnhout

When the law changed in Ireland, our agencies saw that social workers were seeking more information and guidance from within the agency. As I have said, we have a different process in Ireland, and our allocated budget was zero, so we did not have any awareness raising or campaigning in relation to the change in the law. I would love there to be a massive campaign to ensure that we get the message to all children and parents, but, as a legislator, I feel that not having that campaign should not prevent our changing the law.

Gail Ross

If you did not have a public awareness-raising campaign in Ireland, how did you convey to people that the law had changed?

Jillian van Turnhout

We conveyed it through the organisations that engage and interact with children—public health nurses, paediatricians, social workers, people who engage with children every day in early learning centres, schools, the media and so on.

It was fascinating to see how quickly the cultural change happened. People automatically made assumptions. In fact, only this morning, when I was discussing with a member of the public that I was coming here, they said, “But that law changed two years ago in Scotland.” It is interesting that, when you start having these debates, the public automatically starts to think that things have changed.

Gail Ross

Looking back, is there anything that you would have done differently?

Jillian van Turnhout

Would I have done anything differently? I suppose that, if I had realised that so many countries in the world had not changed their laws, I might have felt a bit more anxious about changing the law. To be honest, I would not have done anything differently, because, even if I was going to be the only member of Parliament who advocated a change in the law, I wanted children to know that I stood for them and that I believed that they could be in a home that was free from violence.

I would still do exactly the same. It was really heartening that so many of my colleagues across the parties realised that the time was right for us to change the law.

09:45  



Gail Ross

I want to pick up on something that Matthew Sweeney said in response to a question from the convener. He stated that there had been an increase in reporting, but not in prosecutions. Was that evidence from Ireland or elsewhere?

Matthew Sweeney

When the COSLA children and young people team was considering the matter, we heard research that was presented by Scottish Directors of Public Health and Social Work Scotland. I think that that was from international evidence from across Europe and the world. That is where that came from.

Gail Ross

Okay. I just wanted to get that on the record.

We have received representations that have said that we should possibly be doing a public awareness-raising and education campaign to try to not teach but advise parents about alternative positive parenting techniques instead of using smacking, which is sometimes used as a last resort. Would an awareness-raising and education campaign be enough on its own? Why do we need the legislation to back that up?

Dr Reynolds

How can there be an awareness-raising campaign that says the opposite of what the law says? The law is an absolute barrier to our doing what we know we have to do.

Jillian van Turnhout

It would send a muddled message. Social workers and public health nurses have said to me that, before the change in the law in Ireland, they would say that hitting was not really good and that it should not be done; they would talk about all the research and evidence, and about what should be done instead. That is what was discussed, as opposed to them being really clear and saying that people are not allowed to hit children, in the same way that I am not allowed to hit Lucy Reynolds, and being clear about what people can do now.

Andy Jeffries

I agree. Absolute clarity in legislation is helpful, and the bill heads things in the right direction. There is an intersection with other proposals on wilful ill treatment and neglect, such as the revision of section 12 of the Children and Young Persons (Scotland) Act 1937. There are grey areas in the legislation that are not helpful when we are trying to get it right with parents and change behaviour. Clarity would help that.

Jean Miller

We support that, as well. Sometimes we can have quite difficult conversations with parents and carers, particularly when young people are having difficulties self-regulating their behaviour. In those discussions, often someone will comment, “I know you can’t do that here, but that’s what we do.” Some parents can find it difficult to see that the relationship that they are developing is not helping the situation when children go to school and move on in their lives. Clarity would help us quite significantly in those discussions.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Good morning, panel. Most of the issues that I was going to ask about have been covered, but I have three specific questions for you. It has been a fantastic session this morning.

Andy Jeffries helpfully mentioned the child protection processes, which other members, panellists and I have brought up in previous evidence sessions. He covered the main points that I wanted to raise. If the bill were to be passed, how would the current child protection processes change? That is a hypothetical situation.

Andy Jeffries

They would not change at all. It would be the same business. The national guidance says that a multiagency approach should be taken if there is a child protection concern. That means that social work, the police and the NHS would come together for a conversation in which they would try to establish an agreed multiagency assessment of risk and the immediate arrangements for the safety of the child before getting a plan for moving forward. The approach would be the same with any such concerns. There is a principle of minimal intervention.

Members might know that the national guidance is being revised this year. My view is that the multiagency process could be made even clearer in national guidance. That will be looked at anyway. Essentially, it is about a conversation that the child is at the heart of and in which people think about the child’s immediate safety and how they will help together. The approach would be exactly the same before and after the passing of the bill.

Fulton MacGregor

For the record, and for people who may be watching our meeting and feeling worried, is it the case that you do not envisage a dramatic increase in the number of children being put through child protection procedures or placed on the child protection register as a result of the legislation?

Andy Jeffries

It is very hard to give a definitive answer to that. Child protection concerns vary a lot. As I said, I sign off all the child protection concerns in Edinburgh at a weekly multiagency meeting. The highest number of cases that we have looked at in this calendar year is 66, and the lowest is 22. The number varies a lot over time, and we just respond to the things that need to be responded to.

To echo a point that I made earlier, if we get the GIRFEC approach right, fewer children will come through the child protection route. In Edinburgh, we have fewer children on the child protection register than ever before, and the lowest number of looked-after children in 10 years. Something about getting GIRFEC right with those families is working. The main factor in child protection is that three agencies are agreed and satisfied that a particular child is safe, and that we are doing the right things together.

Dr Reynolds

From the evidence, one might expect a reduction in some child protection cases, because, as Jillian van Turnhout said, if hitting a child is part of somebody’s repertoire of ordinary discipline, at a time of stress they might hit harder than they really intended to and injure a child to the extent that child protection measures might kick in. However, if hitting a child is just not part of somebody’s repertoire, it is not the first thing that they think of doing, even when they are stressed. Some of the papers in that systematic review of research suggested that there would be a reduction in cases of hitting hard, because people would not be hitting at all.

Fulton MacGregor

Child protection is one side of the issue that people worry about. The worries on the other side concern criminalisation, which has been well covered by the panel. Is Dr Reynolds, Andy Jeffries or anybody else on the panel aware of the defence of reasonable chastisement being used?

Andy Jeffries

I do not tend to deal with cases by the time that they are out of the child protection process, so I am no expert on outcomes in court and what happens there. That takes place after the child protection process has done its job.

Fulton MacGregor

What happens in Ireland? Did you come across that defence as you took the law through the legislative process?

Jillian van Turnhout

I talked to people about what happened in private in camera court hearings. We rarely saw the defence being used, but it had been used in a number of cases. Nobody has noticed any increases or significant trends. As Andy Jeffries has clearly said, there are always parameters in relation to child protection but we have not seen any differential.

Dr Reynolds

As paediatricians, we would not see the relevance of whether there are cases in which people have successfully used the defence of reasonable chastisement in the past. The issue is the public health message that is given by having a law that says it is okay. It is not about whether or not the defence has been used before; it is about the need to get rid of it, in order to get rid of the societal message that says that it is justifiable and reasonable for parents or care givers to hit children.

Fulton MacGregor

Is it fair to say that it is about the clarity of the message—

Dr Reynolds

Yes. Clarity, clarity, clarity—I was supposed to say the word “clarity”. Jillian van Turnhout has said it already. Clarity is the big message.

Jillian van Turnhout

It is the word that we hear back from everybody—without me putting it into their mouths. When I contacted the different agencies and organisations, the word “clarity” just kept coming up.

Fulton MacGregor

I have one more question. I support the bill, but last week when the committee was in Skye, we heard an argument that I had not encountered before: that, if the law is passed, it might impact on more vulnerable and disadvantaged communities, where perhaps services—police officers or social workers—are already involved. I do not think that that would be the case, but I want to put that suggestion to the panel, particularly Andy Jeffries again—I am not picking on you—but also the other panel members. Is there any relevance in that argument?

Andy Jeffries

Yes. I think that there will be sections of the community that it will be harder to communicate this message to than others. You are talking about different value bases and beliefs, so there might be disproportionate impacts on various communities or faith groups. As I said earlier, those are the areas in which we need to work to educate people, engage them and get them on board.

Nobody wants to punish people who already have an adverse life experience because of poverty, domestic abuse or whatever else they have to live with. None of us would want to have those things present in our lives. I keep coming back to the point that we need to get alongside those people and help them not to hit their children. It is as simple as that. We must help them to do other things that do not involve hitting children.

Jillian van Turnhout

I do not know the situation in Scotland, but in Ireland there is a disproportionate belief that child abuse is more likely to happen in a poor family than in one in which the parents have respectable professions. We as a society and as legislators have to continually challenge that belief. That is important.

When we changed the law, we saw that there was a challenge around how to explain it to some of our minority groups. However, when I engaged with the respected individuals and leaders in those minority groups, they welcomed the challenge of talking with their groups and members in order to share with them issues around positive parenting and how to raise children in Ireland. For me, the issue is one of clarity.

Dr Reynolds

If there is a difference across the socioeconomic spectrum in the prevalence of children being hit, that is all the more reason why the more deprived communities should get the benefit. I have worked for the past 17 years as a consultant in north Glasgow. I also cover part of East Dunbartonshire, so I occasionally see someone who is a bit more affluent. Earlier, I mentioned a young mum who said that their mother had said, “If a child bites you, bite him back so he knows what it feels like.” She was from a deprived background. Once I explained the issue to her, she understood that that was ridiculous, and she said that she would tell her mother.

Last week, two educated parents—I am picturing them and asking myself where exactly they lived and how affluent they were—were speaking to me about their child’s behavioural issues and the possibility that he might be on the autism spectrum, and the dad said, “He doesn’t even seem to understand when I give him a smack.” Clearly, he did not think that a paediatrician would have any issue with that. Of course, I did not jump down his throat and tell him that he was a terrible person, but his partner immediately said, “Oh, don’t mention the smacking,” which was funny. Their confusion was evident, but I hear that kind of thing from families in various circumstances.

The Convener

Alex Cole-Hamilton and Gordon Lindhurst have questions. I note that we are drawing into our last eight minutes.

Alex Cole-Hamilton

Thank you for letting me come back in. I have a question for Jillian van Turnhout.

We have heard a lot about clarity. As Andy Jeffries said, there is a perception among many parents that smacking is already illegal in this country. That confusion exists. Since the law was changed in Ireland, has clarity been established?

Jillian van Turnhout

I believe that it has. I do not have any evidence for that, because we have not done any polling. Before I came here today, I tried to see whether I had any statistical evidence to present to you, but there was none in that regard. However, I conducted wide consultations. Also, I am a member of the Irish Girl Guides, and I am a safeguarding trainer. One of the things that we do in training sessions is to talk about certain scenarios that involve a scale of one to 10 in relation to abuse and the hitting of children. Since the law changed, all the people at those training sessions, right across Ireland—the mothers, certainly—know about the change before I or any of the other trainers who I am in charge of as a volunteer say anything about it.

Alex Cole-Hamilton

Professor Larzelere, the American academic from whom we will hear later today, suggests that, unless parents have recourse to mild back-up smacking, as he describes it, they might become increasingly frustrated, until they are likely to explode with severe verbal or physical violence. Is there any empirical evidence of that happening in Ireland or in other countries where this change in law has already taken place? Is that a concern of any other witnesses here today?

Jillian van Turnhout

I find it difficult to understand the rationale for that argument. In advance of changing the law in Ireland, I read a considerable amount of research. We did not have the benefit of the Anja Heilmann research on equal protection, as it was not available at the time, but we had research by Elizabeth Gershoff and Andrew Grogan-Kaylor, which looked at 75 studies involving 161,000 children, covering more than 50 years of research. That study clearly found that there is no evidence that spanking is associated with any improved child behaviour. In fact, any level of hitting of a child is more likely to be associated with troubling outcomes.

10:00  



Dr Reynolds

With systematic reviews, the key word is “systematic”. They involve people doing searches on key words and finding good-quality studies that give evidence on what they are studying. The point that Mr Cole-Hamilton mentions has not been quoted in any of the systematic reviews. It sounds as if it has been made by somebody who has a preconceived position and is cherry picking and clutching at straws to find something that might support what they are saying.

Jean Miller

I represent an organisation that represents adults the length and breadth of Scotland who work with children and young people every day, sometimes in difficult and distressing situations. There has never been anyone who would say that the answer is to use violence towards any of those children and young people. In fact, our clear message is to promote good health and wellbeing among our children and young people and to teach them about the ways in which they can improve that and their social and emotional development. That is how we will ensure that children and young people in Scotland go on to become parents and carers who do not consider using violence towards any young person.

Gordon Lindhurst (Lothian) (Con)

I have a question for Jillian van Turnhout. I read your helpful and interesting submission, which refers to the change in the law in Ireland and to the Non-Fatal Offences Against the Person Act 1997, which is your codified criminal law. Of course, we do not have a codified criminal law in Scotland. There are certain defences in that act. For example, in section 2, which defines assault, subsection (3) relates to the defendant not knowing or believing that what they do—the “force or impact”, as your law defines assault—is

“unacceptable to the other person.”

In our procedure, individual MSPs can introduce amendments at stage 2. Should Scottish parents and families have the same protections in law as Irish parents and families have? We do not have those protections in our common law, but you have them in your codified criminal system.

Jillian van Turnhout

To be absolutely clear, we do not have a codified law. We do not use that system—we have a common-law tradition, too. Like your common law, ours has evolved over the years and we have made changes in legislation.

We chose to amend the Non-Fatal Offences Against the Person Act 1997 because that is where the offence of physical assault is set out, and the Government felt that that was the best place for the provision. I was privileged to have the authority of our Attorney General to help to make the amendment. I originally submitted my own humble amendment, but I later had the authority of the Government and the Attorney General. We changed the law through our Children First Act 2015. That amendment repealed the common-law defence of reasonable chastisement. The measure was put in the best piece of legislation—the 1997 act—but it was done through our Children First Act 2015, which is a safeguarding child protection act. It is about having safeguarding statements in youth halls and elsewhere around the country. The change was made through the 2015 act, and that piece of legislation has no sanctions in it, which is why I chose it.

For me as a children’s rights advocate, I often find that, when we change the law in Ireland, it takes some time for the Government to commence the new legislation. However, in this case, unusually—this pays testament to the public opinion on the issue and also relates to the resources question—the Government commenced the legislation within four weeks. The law was changed expeditiously to repeal the defence under the common-law tradition that we have in Ireland.

Gordon Lindhurst

That is a helpful clarification. As you say, you do not have a codified criminal law, but assault is defined in a statute or act of Parliament. You have a mix of a codified system and a common-law system, which is perhaps similar to the situation in England, where many offences are defined in statute and some are in common law. The committee is dealing with the proposed repeal of a defence to a common-law-defined form of assault, so it is not quite the same as your system.

If I understand you correctly, your key point is that there is no criminal law sanction.

Jillian van Turnhout

The laws in relation to assault and child abuse apply. The change that I brought forward was to repeal a defence under common law and, from my reading, your bill is the same. I am not in any way saying that I understand the Scottish system, but we both have a common-law tradition. Along with more than 70 countries, we have the same root. Scotland has the same root in its common law in relation to reasonable chastisement as we had in Ireland. In our legislation, we repealed that defence in the common law. All countries change the common law over time. Through legislation, we can amend, change and update our laws and thinking, which is what we did in Ireland.

The Convener

I thank the panel members for their evidence, which has been helpful. I suspend the meeting for a few minutes to allow the witnesses to change over.

10:06 Meeting suspended.  



10:13 On resuming—  



The Convener

Welcome back, everyone. We welcome panel 2. John McKenzie is chief superintendent and head of safer communities at Police Scotland, Mhairi McMillan is from the criminal law committee of the Law Society of Scotland, and Neil Hunter is the principal reporter at the Scottish Children’s Reporter Administration. I start by asking whether you support the aim of the bill to end physical punishment of children, and to give your reflections on why public opinion on the matter is so mixed.

Neil Hunter (Scottish Children’s Reporter Administration)

The Scottish Children’s Reporter Administration very much supports the aims of the bill for a number of reasons. The committee has heard one already this morning, which is that the bill clarifies what is currently a very ambiguous aspect of law in relation to the defence of reasonable chastisement. A lot of the discussion this morning has focused on the need for absolute clarity for parents and society about what is and is not acceptable in relation to children.

The second reason why we support the bill’s intent is that it identifies children as independent holders of rights, which is very important. Those rights are not mediated through adults or their parents; they are equal to but slightly different from those of adults. The bill also helps to bring Scotland into line with a number of articles of the United Nations Convention on the Rights of the Child, as we have heard, and it promotes positive approaches to parenting and helps us to negate the impact of less-appropriate aspects of parenting behaviour.

I have been thinking about the issue of public opinion. In many ways, it depends on what question the public is asked. If the question is framed around potential criminalisation such as we have heard about during the passage of the bill to date, it will get one response, but if it is framed in a more positive way, around children’s rights, protecting them from harms and promoting their long-term wellbeing, it will get a very different response.

John McKenzie (Police Scotland)

The aim of the bill, as outlined on the policy memorandum, is split into two bits. The first is about promoting and safeguarding the health and wellbeing of children and young people and ensuring that they are afforded the same rights to protection from assault as adults. That is in line with Police Scotland’s values, and we support that component.

The committee will be aware that Police Scotland usually remains neutral in relation to legislation. On the provision in the bill to remove the defence that is linked to justifiable assault, I will say that it is ultimately for legislators to make a policy decision based on what they believe, which will be based on evidence. I will tell you what I think the evidence is, based on my and Police Scotland’s judgment.

It is clear that the multi-agency response that has been much talked about in the evidence sessions is not different from the police and social work perspectives. The evidence seems to support the view that the wellbeing of children is served by the bill. Lessons can be learned from other places that hold what is, in principle, a common-law system—for example, New Zealand and the Republic of Ireland. Those include use of explanatory notes for parents about restraint, which was spoken about earlier, and use of communication, such as in the Republic of Ireland. Police Scotland supports that second component—we support the principle that is highlighted and I believe that there is a body of evidence to support the rationale behind it. However, removal of the defence of reasonable chastisement is ultimately a policy decision for legislators.

In terms of public awareness, I said to Neil Hunter before the meeting that in my notes I have the findings of the public survey that show that 75 per cent of respondents support the bill and 25 per cent do not. I cannot find the note at the moment, but I believe that those numbers are correct. I anticipate that public support will be enhanced as we move forward. That has been demonstrated in Sweden and the Republic of Ireland.

I am not convinced that opinion is so polarised among the public in Scotland. My judgment and my sense are that it is not. That relates to the proud history that Scotland has, including around the Kilbrandon report in the 1960s, our approach to criminalisation of children and the getting it right for every child policy.

Mhairi McMillan (Law Society of Scotland)

As the convener said, I am representing the Law Society’s criminal law committee. It is not—as with John McKenzie’s position—our role to comment on social policy.

However, clarity in the law is really important to the Law Society. I work as a defence agent, so I know that the law is not clear or easily understood by people. We sometimes talk, incorrectly, as though it is already an offence to assault a child, if that is what you are talking about, but there are defences in law. I know that the committee has heard lots of evidence about that, and that needs to be the starting point. We need to explain the nuances of the defences and what they mean, because that is not well understood by the public or by clients. Clarification of the law is always helpful.

Oliver Mundell (Dumfriesshire) (Con)

I am very interested in the point that Mhairi McMillan has just made. I am concerned about the method that has been chosen to take the defence out of the law through the bill. Lots of people talk about the bill being “anti-smacking”, which is clearly not what it is about. One of the witnesses in the previous session said that we do not know the difference between a smack and a whack, and that there is no invisible line. In your practical experience, do the courts make a distinction, in legal terms, between a smack and a whack that is intended to cause physical harm?

Mhairi McMillan

If we take children and the bill out of the equation, we can see that how assault cases are dealt with in the courts system is relatively clear. The courts are well used to dealing with such cases. For a prosecution, there needs to be evidence of the intention to harm, which is looked at in various ways. There is still a small grey area, but, ultimately, a prosecutorial decision will be made on whether it is in the public interest to prosecute. In some cases, after various factors are weighed up, it might be deemed that prosecution is not in the public interest. What happens with a case is dependent on the facts and circumstances of that case. I do not know whether that helps to answer the question.

Oliver Mundell

It does. How would I, as a legislator, know what the threshold will be and where it will sit, if the bill is passed? In that context, if the bill’s aim is to end physical punishment of children, would it be better to pass a statute that makes that point clear? Would that give more clarity than will be provided just by removing the defence?

Mhairi McMillan

I take your point, but our common law has served us quite well in that area. There is a good understanding of what assault is and what it means. If I deal with an ordinary assault case, I am clear about how I will explain that to the client, what the issues are and what their concerns might be. The process for dealing with assault cases is straightforward and clear from a prosecutorial point of view, and for the sheriffs, judges and justices of the peace who need to make the decisions. Our common law serves us well in that regard, so I do not see an issue with the bill not achieving your aims because of its drafting.

Oliver Mundell

You think that parents would have sufficient foreseeability and could moderate their behaviour, even though there will be no case law because of the previous use of the reasonable chastisement defence. I am certainly not aware of any case law that sets a threshold, because the defence has been in place. When that defence is used, we do not get into the question of intention to harm and whether there was evil or wicked intent. Is that foreseeable enough?

Mhairi McMillan

It is foreseeable enough, in the sense that there is lots of case law on assault. Obviously, the case law would evolve if cases involving children were brought in after the defence was removed. There is merit in common law being the source of our law evolving, because we can progress and change things as time goes on. Ultimately, if the change in the law were to be enacted, the advice to clients would be that it is against the law to assault their child. How that would be interpreted thereafter would be down to the courts, but the advice would be clear.

Oliver Mundell

If you are confident that common law can adequately define assault, why is it so ambiguous when it comes to this particular defence?

Mhairi McMillan

Why is it so ambiguous?

Oliver Mundell

Yes. Do you think that the law is ambiguous with this defence?

Mhairi McMillan

Do you mean in terms of using reasonable chastisement as a defence?

Oliver Mundell

Yes.

Mhairi McMillan

Yes, I think that the law is ambiguous in that respect. That is why the Criminal Justice (Scotland) Act 2003 in part—

Oliver Mundell

So why is the common law ambiguous for a defence but not ambiguous for the offence? What is the difference?

Mhairi McMillan

I suppose that it depends on what you mean by “ambiguity”. “Reasonable chastisement” is broad in its meaning. Up to a point, people were clear what it meant, and the courts were clear. Its meaning was tested, and it was found that the level that we allowed was not acceptable in terms of international practice. Therefore, we moved to tighten up the definition and give further clarification. It is not that the common law was unclear; the issue was that our legal position was not the one that we wanted it to be. Does that answer your question?

Oliver Mundell

That perfectly draws out the point that I was hoping would be made.

Michael Sheridan from the Scottish Law Agents Society wrote an article in the past week or so. He said:

“like ... recently repealed legislation, the proposed legislation might not take ... into account practical difficulties likely to arise upon implementation.”

Do you know what legislation he is referring to? What does he mean by that statement?

Mhairi McMillan

I cannot see any practical difficulties with implementation. I am sorry that I am unable to answer that.

Oliver Mundell

That is fine. Thank you very much.

Alex Cole-Hamilton

Dr Lucy Reynolds, who was on the earlier panel, gave us a very powerful account of a social experiment involving children learning by mimicry. I do not know whether you heard her talk about the experiment in which children were shown a film in which an adult in a room of toys was using a mallet to hit a clown. When the children were let into the room, they mimicked the adult’s behaviour. However, the control group, who had not seen the video, did not hit the toys with a mallet.

I am really interested to hear the response to that, particularly of the police, although perhaps this is for the wider panel. Over the years, I have heard arguments in this debate from various people. John Carnochan, who is formerly of the violence reduction unit, has cited the connection between violence in the home and violence on the streets. Perhaps John McKenzie could lead off on whether Police Scotland accepts that children learn via mimicry, and that sanction and legitimisation of use of violence in the home through physical punishment has a causal relationship with violence on our streets.

John McKenzie

I will be quite straightforward: I suppose that you will have heard the same evidence as I have heard, and there are greater people than I to make that judgment.

The policy memorandum outlines the evidence that exists to demonstrate that link. I am going with the body of evidence that was highlighted by the previous panel that suggests that there appears to be a link between violence in the home and violence in wider society. It is not Police Scotland or I who have made that judgment, and I do not have evidence today to demonstrate it. The evidence for that, which the committee has already heard, has been highlighted in the policy memorandum and by other witnesses. Given that, I return to my original point about whether the bill supports the aim of promoting and safeguarding the health and wellbeing of children and, by extension, promoting the health and wellbeing of the wider community. The evidence seems to suggest that it does.

Alex Cole-Hamilton

What is your view, or that of Police Scotland, on the position of Marsha Scott of Scottish Women’s Aid, who has always advocated that we cannot begin to eradicate domestic violence in the home while the state allows any physical punishment in our homes?

John McKenzie

The United Kingdom appears to be a bit of an outlier in accepting that corporal punishment in the home is justifiable. It seems to be the case that the evidence shows the benefits of educating parents on alternative methods of parenting.

The evidence that Mhairi McMillan presented in relation to the domestic abuse component clearly has linkages to violence in the home. It is not limited just to violence against children, women or other members of the home. Going back to the question of what evidence base there is to demonstrate that violence has an impact on children’s wellbeing, there seems to be an evidence base to suggest that that is the position.

10:30  



Alex Cole-Hamilton

I invite other panel members to respond to either of my questions.

Neil Hunter

From the evidence sessions that the committee has already had, it is clear that the evidence overwhelmingly suggests that the existence of a spectrum of violence in children’s lives—particularly in the household—has a very adverse impact on their wellbeing and outcomes. That spectrum can range from very severe forms of violence to physical punishment. It is clear from both evidence and practice that where we have examples of alternative approaches to parenting children and to the use of physical punishment, there is a clear absence of those adverse experiences.

I have listened to the various evidence sessions over the past few weeks: the empirical evidence is stark and overwhelming, and makes up by far the majority of evidence. It is clear from our day-to-day practice in the children’s hearings system that children who live in circumstances where violence and aggression are predominant can present with very significant challenges and difficulties in their lives. Violence is one aspect of how those difficulties—which are significant—manifest themselves in children. If I were to ask any children’s reporter in the land to tell me about the impact on children of living in circumstances in which there is violence and physical punishment, they could tell me in detail about the experience of that of the children with whom they are involved.

Mhairi McMillan

I cannot speak at length to any of the research. However, with regard to practical day-to-day working, I do a lot of criminal work and a lot of children’s referral work—to the children’s hearings system—and there is a sizeable crossover on that, which I think shows something. However, I cannot speak to any detailed research into the issues.

Alex Cole-Hamilton

I have a final question. This afternoon, we will speak with Professor Larzelere, who is an American academic and very much an opponent of the proposed legislation. He cites the example of Sweden and suggests that there is a causal relationship between Sweden’s ban on smacking, which took place in 1979, and a 7,000 per cent increase in the number of juvenile rapes between 1979 and 2010. Are the witnesses concerned that we would experience the same increase in violence, delinquency and rape among children and young people if we go down the same route?

John McKenzie

Prior to coming before the committee, I undertook a bit of research to determine whether there was any indication of such an increase. The first that I heard of that piece of academic research was when I was sitting at the back listening to the earlier session. The phrases “suggests a causal relationship” and “a 7,000 per cent increase” are meaningless to me unless I understand the base figures.

Based on the research that I undertook—including interaction with colleagues from the Republic of Ireland and research from New Zealand and wider authorities—I do not see any evidence base supporting such a suggestion.

I will go back and read the piece of research and listen to the later evidence session with interest. However, I have nothing to bring to the table to suggest that the proposed legislation would impact negatively; actually, other research programmes suggest that it would impact positively.

On the wider point about increased reporting, why is that seen as a disadvantage or a poor thing? There is a body of evidence to suggest the opposite. Increased reporting might be a good thing to support parents and children. However, I will listen to the upcoming evidence session with interest.

Mhairi McMillan

I am not a researcher, but I read what Professor Larzelere said and it did not make sense to me.

Fulton MacGregor

Earlier, I asked Andy Jeffries about how, practically, the proposed change in the law, if it is agreed to, would affect the child protection process, which involves social work and the police. I would like to put the same question to John McKenzie. If a referral comes in and there is a joint social work and police investigation, how would the proposed change in the law affect interaction between the police and social work?

John McKenzie

It was nice to see Andrew Jeffries, whom I have not seen for a number of years. He mentioned a weekly interagency referral discussion meeting that he attends in Edinburgh, which I used to attend along with him every week.

Andrew Jeffries highlighted to the committee that the proposed change in the law would make no difference to the processes that are adopted, and I reiterate that. If a situation is believed to be a child protection matter, there will be a multiagency response, which means that there will be, at least, a three-way conversation, although there might be other parties involved, depending on the circumstances. That will be followed by an assessment of risk, and a multiagency approach will be taken to the safeguarding of the child or children. The removal of the defence of justifiable assault would have no impact at all on the process and procedures that are adopted by social work, health and the police, which are outlined in the 2014 child protection guidelines.

Fulton MacGregor

Do you think that that also applies to the police’s decision on whether to charge someone, once that process has run a reasonable course? That ties into my more substantive question about whether you have seen the defence of justifiable assault being used.

John McKenzie

I have seen the defence being used. Two pieces of case law are highlighted in the papers, whereby the defence was used in 1988 and 1989, and I am aware of the defence being used during my career. I have spent the best part of my policing career in public protection.

That said, I go back to the point that it is a defence that can be used in a trial, but it is for the court to determine whether there was a justifiable reason for the assault. However, that would not impact on the approach that we would adopt.

The terms “smacked” and “whacked”, which have been used in the media, are not that helpful. The term “assault” is more accurate. If there is evidence to support the allegation that a child has been assaulted, that will be reported, we will determine whether there is evidence to support a charge and it will be for the procurator fiscal to decide whether there is evidence in law to support a case. Ultimately, a report might be produced on the wider wellbeing of the child.

Fulton MacGregor

So the existence of the defence of justifiable assault does not, and will not, impact on the police’s decision about whether to charge a suspect.

John McKenzie

What I am saying is that it should not impact on that decision. The removal of the defence of justifiable assault should not impact on the processes that are adopted, unless wider guidance documents, clarification notes or Crown guidance are produced. As I read the bill, it should not have any impact on the processes that are adopted.

Fulton MacGregor

From the point of view of a children’s reporter, if the bill is passed, what will the practical, day-to-day implications be for the running of the hearings system?

Neil Hunter

As of today, the police and local authorities have a duty to consider referral to the children’s reporter when they consider that a child requires protection, guidance, treatment or control and that compulsory supervision might be required for that child. That would not change. We do not require an offence to have been committed for those concerns to result in a referral to the children’s reporter. In fact, the GIRFEC approach, which has been extremely effective in ensuring that many children have access to voluntary support in their families and their communities, has enhanced our ability to focus on those children who need control, supervision, guidance or treatment and in relation to whom there are grounds for compulsory measures. The bill would not change the focus, which, in all those decisions, is on the best interests and the welfare of the child. That is the sole determining factor as far as referral to the child’s hearings system is concerned.

When children’s reporters receive referrals, our job is to ascertain whether the referral ground is relevant to the child’s circumstances, whether the evidence is sufficient to establish that ground of referral, should we require to do that, and whether it is in the child’s best interests for a children’s hearing to be arranged to consider compulsory measures. Again, that will not change; the focus will be on each individual child, their circumstances, the background to the referral and their welfare. Ostensibly, the process around child protection, GIRFEC and referral to the reporter will remain the same.

Fulton MacGregor

Is there any merit in the argument that we heard when the committee was in Skye last week that, if the bill is passed, it might inadvertently disadvantage families from certain backgrounds who might already be involved with agencies such as social work, the police and the children’s hearings system?

Neil Hunter

I go back to Andy Jeffries’s earlier point. In terms of our public promotion of the proposed measures in the bill and of positive parenting, we will need to work harder in some areas and communities than we do in others. However, I do not see any particular community or group being disadvantaged by the bill. The main beneficiaries of the proposals will be children. If we need to work harder to get the message across to adults and those who have parenting or caring responsibilities in particular areas of society, that is exactly what we need to do.

The Convener

Mary Fee has a question on specific equality groups.

Mary Fee

My question follows on quite nicely from the line of questioning that Fulton MacGregor has opened up.

I will start with Neil Hunter but John McKenzie might want to come in. Do you have any evidence, or are you aware of any evidence, that suggests that specific groups of children and young people are more likely to be subjected to physical chastisement, such as those who have physical or mental limitations or who come from a care-experienced background?

Neil Hunter

The main evidence that I am aware of is around the vulnerability of children who have a disability, who might be more vulnerable to the experience of physical assault and abuse. About two years ago, the SCRA did some research into awareness of broader child protection procedures and expectations among black and minority ethnic communities, which showed a lower level of awareness of child protection arrangements, procedures and protections than in other groups. We have continued to work at the national and local levels to think about how we can promote understanding and awareness of child protection concerns in those communities.

I am not aware of any other areas, populations or equality groups that would be disproportionately affected by the proposals. As I say, the main beneficiaries of the proposals will be children. Further work might need to be done in some communities or with some equality groups where there might be more of a challenge for us, but the challenge is there to be met.

Mary Fee

That is helpful.

John McKenzie

I probably do not have a great deal more to add to what Neil Hunter said. I have not seen the equality impact assessment that has been undertaken in relation to the bill. Work needs to be undertaken in relation to a wider equality impact assessment.

It is clear from evidence around the world that raising awareness is an important component when such legislation is introduced and, again, it falls on the policy makers and the legislators to ensure that communication is clear. There is evidence to suggest that there are lessons to be learned about the communication process from the Republic of Ireland. There is also a clear element of setting parameters around the difference between restraint and assault, which goes back to earlier questions. There is learning from New Zealand’s experience of that.

Beyond what Neil Hunter said, I have nothing to add about the wider impact from the equality perspective.

10:45  



Annie Wells

I will ask the same question that I asked the earlier panel of witnesses. Is there any evidence that the bill will criminalise parents and lead to an increase in prosecutions?

John McKenzie

Again, I tried to do a bit of research myself, which included looking at the evidence from the committee’s previous sessions, and there is no indication that such legislation results in an increased number of prosecutions. There is a suggestion that it results in an increased level of reporting, which is different. In New Zealand, there was an increase of 36 reports over a two-year period. I am not sure how indicative or useful that figure is—it is probably not that useful, but it gives an indication of the experience in New Zealand.

Will the bill criminalise parents? I go back to my original point. The bill aims to remove the statutory defence of justifiable assault, and I cannot see how that, in itself, would criminalise parents. We have an opportunity to communicate more widely with parents and to highlight the values of Scotland and organisations here as well as our hopes for the children of Scotland. I do not believe that there is any evidence of parents having been criminalised in other countries that have gone down this legislative route.

Mhairi McMillan

The ethos of the bill is about changing public attitudes, not increasing the number of prosecutions. I reiterate that it could increase the number of reports to the police, but that is a likely effect of any public awareness campaign around an issue. I return to my earlier point that it is down to prosecutorial discretion as to how prosecutions proceed.

Neil Hunter

I cannot see any evidence that suggests that there would be an increase in the level of criminal prosecution of parents. In the long term, we should see the benefit of the bill and its proposals in the recalibration of our approach to supporting and rearing children in Scotland.

I do not see any real evidence that state intervention in family life will increase as a result of the bill. I say that because our focus is on the best interests of the child. Discretion and judgment are built into each part of the child protection and welfare system, and that takes us away from having binary choices or hard lines when it comes to deciding whether to prosecute. Our interest is in children’s welfare and protection, and we make the best decisions that we can with that as our guide. I have heard no concerns from people in my organisation that the bill would lead to an increased level of prosecution of parents or state interference in family life.

Annie Wells

Neil Hunter has answered this question, but perhaps the other witnesses would like to add something. Some people are concerned that the bill would interfere in private family life. Is that concern justified?

Neil Hunter

I want to add that one of the important roles performed by the children’s reporter is to ensure that there is no inappropriate state interference in family life, and that any interference in family life is proportionate, justified and based on evidence.

John McKenzie

I reiterate the points that Neil Hunter has highlighted and I would go back to some of the points made by Andy Jeffries about interference in family life. I do not believe that there is any evidence to demonstrate that that would happen.

Mhairi McMillan

The right to family life set out in article 8 of the European convention on human rights is not an absolute right. There are limitations on that right, and what the bill aims to do is achievable in that context.

Annie Wells

Thank you.

Gail Ross

We have heard from various witnesses who have said that the evidence from other countries is that there is not an increase in prosecutions but there may well be an increase in reporting. Do you expect any increased burden on public services as a result of an increase in reporting?

John McKenzie

It is my understanding and my professional judgment that there will be an increase in reporting. To be fair, the extent of that increased reporting is hard to determine, based on the evidence that has been presented from New Zealand and the Republic of Ireland. I use those two countries as examples because their systems are founded in common law. I have also looked at other countries such as Sweden.

It is unclear how much of an increase there will be in reporting. It appears that in New Zealand there has not been a significant impact. The financial memorandum assesses the possible financial impact. It is hard to determine what the financial impact would be from a public service perspective. I suggest that some analysis is required of the real impact in other jurisdictions such as the Republic of Ireland.

According to the evidence that has been presented, there will be a minimal impact, but I think that there are some gaps in that evidence, so it would be worth looking at further evidence to understand what the impact has been elsewhere.

Gail Ross

It has been suggested that there is a high probability that, if the bill is passed, it will save money further down the line and that this should be looked at as preventative spend. Would you agree with that?

John McKenzie

I tend to agree with that. I am not convinced that an increase in reporting should be seen as a disadvantage; it should be seen as an opportunity to support parents and to understand any risks within the family environment. Hence, it may be seen as a preventative approach that will reduce spending in the future. There is a rationale behind that argument. It has always been difficult to understand what savings have been made from prevention, because you have to understand the baseline figure. In this case, we do not have an understanding of the baseline figure. That has been the challenge in the Republic of Ireland as well, I understand. The bill could prevent cost in the future, but further analysis is needed to clearly understand the position.

Neil Hunter

If there is an increase in reporting, it is likely to be fairly small and short lived. It is likely to be a good thing if it leads to families in need of support and help being identified earlier.

We have already heard this morning about how our public services currently line up around the principles of GIRFEC to work alongside families. If there is a short-term increase in reports, there could be some positive benefits in terms of early, elective interventions with families rather than waiting for circumstances to become acute, when agencies such as mine might have to step in and consider more formal interventions.

In the long term, this is about recalibrating how we bring up our children in Scotland, so I do not see any long-term financial consequences or long-term strain on the public purse; I see opportunities for earlier effective intervention with families, working alongside them.

Mhairi McMillan

I do not have anything to add to that.

John McKenzie

I have one additional point, which is in support of an earlier comment. I understand that, in Sweden, there was 83 per cent acceptance that corporal punishment in the home was not justifiable, and that the introduction of legislation has resulted in a position where 97 per cent of the population believe that corporal punishment in the home is not justifiable. Therefore, from the evidence, I anticipate that, just by introducing legislation and having a clear public message, we will achieve understanding in the wider public and social acceptance that corporal punishment in the home is not acceptable. As Neil Hunter said, there might then not be an impact on services in the long run.

Gail Ross

Cultural change is one of the aims that we have talked about in previous evidence sessions and today. We heard from a previous panel that the aim is to stop adults lifting their hands to children, full stop, whether it is assault or, as we have heard it described by another panel, a light tap on the hand as part of “loving chastisement” or punishment.

You have talked about setting the parameters between restraint and assault. How will we set the parameters in relation to what is viewed in some communities as a loving tap on the hand? If you are called out to such incidents, how will you determine what is in the public interest?

John McKenzie

It is the role of the legislators to ensure that there is clear public messaging on what is and is not acceptable. The determination of what is a tap on the hand and what is assault would be done through the sort of evidence gathering that I have mentioned. We would have a discussion about how to approach the issue and, if a child protection concern was highlighted, we would make a determination of the evidence base and whether there was sufficiency of evidence to justify the use of the term “assault”. That will not change.

To be clear, in all my years in the public protection arena, I have never heard anybody reporting to or engaging with the police about somebody getting a tap on the hand. Examples such as a tap on the hand by a parent are probably not useful when we are talking about assault on children.

Gail Ross

We have also heard people questioning the need for legislation, given that we are going to do an awareness-raising and education campaign, work is already happening on positive parenting and alternatives to smacking, and attitudes are already moving in society. Is there a need for legislation? Why do we not just do the awareness-raising and public education campaign on its own?

Neil Hunter

Social attitudes have changed, but they have changed slowly. The continued presence of a defence of justifiable assault on children is holding us back in achieving absolute clarity in our expectation on the conduct of parents towards children. Public awareness campaigns can help, but if this ambiguous aspect of law continues to be present in Scottish society, it will always hamper the pace of change.

It goes back to the point that rebasing and recalibrating what we expect in terms of the wellbeing, health and development of Scotland’s children will accelerate the positive progress that we have made. I have spent much of my career in social work and health care and I have seen some good developments in programmes in communities across Scotland including the triple P—the positive parenting programme—and mellow parenting, with delivery by services such as health visitors and others. There is a sense that a lot of the apparatus to support families is currently in place. A change in the law and a reset of the tone will help us further in delivering support to the families who need it most.

11:00  



John McKenzie

I reiterate Neil Hunter’s opening comment: I believe that social attitudes have changed and are changing. I was taken by the evidence presented earlier about the juxtaposed position of saying one thing in law and another in guidance or public messaging. Based on what I have heard, I am not convinced that that is a helpful position. It should be one thing or the other.

Mhairi McMillan

I support that view. An awareness campaign that says, “This is what we want you to do, but the law says another thing,” will not work. The law gives people clear messages as to what we are looking for in their parenting. If the intention is to make social change, the law needs to support that so that you can communicate it to people effectively. The situation is confusing in the reality that families are looking at. I sat with a client while she watched a police interview of her ex-partner talking about what he had done. Her view was that he had admitted to an assault—which he had, but there was a clear defence of reasonable chastisement. For her, it was clear that he had broken the law and admitted to that, but actually he had not. Her view was that smacking in any shape or form was already illegal, but it is not. We need both the law and the awareness campaign to be the same, if that is what you want to have.

Gordon Lindhurst

I have a question for John McKenzie. Earlier, we heard from an Irish senator who is involved in the legislation in Ireland. She said that there are no “sanctions” in the legislation as it was introduced there. The Scottish Parliament information centre paper that was commissioned by the committee sets out that in Sweden, likewise, there are no sanctions. We do not have in our system what there is in New Zealand, for example: a statute of limitations that would relate to this sort of potential offence. Different systems have very different approaches. Sweden, of course, has a statute of limitations.

Should we not make it clear in the bill and spell out in black and white the rights that parents, children and families have, as has been done in Sweden, Ireland and New Zealand? Those are not spelled out in our law and the bill does not seek to do that. Part of the concern is that, as you will know, we have a high prison population in this country; we tend to approach criminal law very differently from other countries. We may be seeking to move the approach in a different way, by raising the age of criminal responsibility, but should we make the rights clear in the bill, so that we have the same approach to rights for parents and children in Scotland as other countries have?

John McKenzie

I listened with interest to the earlier session and I confess that, to answer your question in any structured manner, I would have to check what the position is in the Republic of Ireland and Sweden. However, as I said in my opening comments, it is for the legislator to make the decision about what is in the bill, based on the body of evidence. I do not have anything constructive to add in response to your question because I would want to research the point that you made. However, I reiterate that it is a decision for the legislator to make.

Gordon Lindhurst

May the other two panellists comment, convener, if they wish?

The Convener

Of course.

Mhairi McMillan

Different legal systems do things in different ways, but if they reach the same aim and have the same objective I do not think that it matters. We have a good system of common law in this country and there is no reason to move away from that.

Neil Hunter

I may have misunderstood your question, but anything that sets out clarity for parents in terms of their rights and responsibilities would be helpful. However, we do not necessarily need to enshrine that in law. We need to be very clear in promoting understanding of parental responsibilities and rights and what we expect of parents in their conduct towards children, particularly in relation to ever-changing societal expectations. The bill creates new, positive societal expectations in relation to parental conduct.

John Finnie (Highlands and Islands) (Green)

I have a point of clarification in relation to an aspect of what Mr Lindhurst said. Of course it is important to have clarity, and the clarity about transitional arrangements is covered in paragraphs 118 to 120 of the policy memorandum.

The Convener

That brings us to the end of this session. I thank the panel for their evidence. The committee has already agreed to consider the evidence in private and after that, but not before 1 pm, we will reconvene to take evidence from Professor Robert Larzelere via video conference.

11:06 Meeting continued in private.  



11:28 Meeting suspended.  



13:05 Meeting continued in public.  



The Convener

Good afternoon and welcome back, everyone. We have received apologies for this section of the meeting from Annie Wells MSP and Oliver Mundell MSP. This is the eighth meeting in 2019 of the Equalities and Human Rights Committee. I remind everyone to switch off their mobile phones and put them away.

I welcome Professor Robert Larzelere from the human development and family science department at Oklahoma State University. You are very welcome, professor. I invite you to make an opening statement of up to three minutes, please.

Professor Robert Larzelere (Oklahoma State University)

Thank you very much for letting me appear before your committee to talk about this important bill. I share your primary concern, which is the welfare of the children of Scotland. The welfare of children is the reason that I have devoted my career to parenting research. Children need the best research. The best research should not be about putting people on the moon, but about helping children to achieve their full potential.

I have asked a couple of primary questions to which you need to know the answer. First, when we tell parents not to smack their children, what should we tell them to use instead? Secondly, it is clear that smacking is correlated with antisocial aggression and other adverse outcomes. Is that correlation because smacking causes more problems, or is it because children who are more oppositional force parents to use more of all discipline tactics?

I have been recognised as one of the leading experts on smacking and its alternatives since at least 1996, when I was one of seven invited speakers at the only scientific consensus conference on the outcomes of corporal punishment, which was co-sponsored by the American Academy of Pediatrics. What was said was published in the academy’s journal in 1996.

In 1998, there was a court case in Canada on the banning of smacking. In response, Canada’s court system considered the evidence from both sides, including the social sciences and legal aspects, more thoroughly than any country has ever done before or since. The court system came out with a middle-of-the-road position that was very similar to the current law in Scotland, but the use of reasonable smacking was restricted to those aged between two and 12. Consequently, the rates of child abuse in Canada decreased by 40 per cent since the change, whereas such rates increased sixfold during the next 15 years in Sweden, which had the most rigorously enforced smacking ban in the world. Therefore, I recommend that you look to Canada, rather than to Sweden, as the example to follow.

The Convener

Thank you, professor. I ask committee members to introduce themselves before they ask their questions in case the professor has difficulty seeing the nameplates.

Alex Cole-Hamilton

Good afternoon, Professor Larzelere. I am a Liberal Democrat MSP and deputy convener of the committee.

Would you define yourself as an academic?

Professor Larzelere

Yes, I have been a researcher.

Alex Cole-Hamilton

Do you agree that the academic standard worldwide, in any discipline, is to present a hypothesis and then test it by using empirical research or evidence that either proves or disproves that hypothesis?

Professor Larzelere

That is correct. That should be done as objectively as possible.

Alex Cole-Hamilton

Great. I ask that question because, in your submission to the committee, you present a hypothesis that is probably the most striking argument against a smacking ban that I have ever read. Using the evidence from Sweden, you reference the fact that, between 1979, when the ban was introduced, and 2010, there was a 7,000 per cent increase in the number of juvenile rapes or rapes of young people in Sweden. In your submission, you say:

“Although increased willingness to report rapes may have accounted for part of these increases, some of this 73-fold increase is likely because a small, but increasing number of boys never learn to accept “No” from their mothers.”

It strikes me that the word “likely” is not very scientific. This is arguably the strongest argument that we have heard against the bill. What empirical evidence do you have for the causality between the smacking ban and the increase in rapes in Sweden?

Professor Larzelere

The same interpretation problem applies to global warming. Global warming is up—the temperature of planet earth is up by about seven per cent. As you correctly said, this is an increase of 7,000 per cent. With regard to global warming, the causal question is whether human activities are causing that increase. There are debates about that—it is not quite as clear.

The increase is in the number of alleged rapes. They are not substantiated; I do not have records of that number. However, there is an increase in the number of allegations of rape of children under the age of 15.

The Convener

You said that the rapes are alleged and that there is no record of them. Are you saying that the evidence that you have presented is not based on recorded crime or recorded accusations of crime? Can you be clear about that, please?

Professor Larzelere

They are allegations that were recorded in Sweden’s criminal records. They are therefore incidents that were serious enough to have an allegation. In 1981, there were 24 allegations of rapes of minors—children who are under the age of 15—and there were 73 times as many in 2010. Some people say that that is because things are getting reported more. However, allegations of attempted rapes increased less than threefold during that same time. They did not increase nearly as much as allegations of completed rapes against children who are under the age of 15.

Alex Cole-Hamilton

It strikes me that, if what you say is true, and if there is empirical evidence to back it up, it would be the strongest argument that the pro-smacking lobby would have to say, on the global stage, that the bill is the wrong course of action and that we should continue to allow parents to discipline their children.

Since those statistics were published, you have had nine years to evidence the corollary between the number of reported rapes in 2010 and the smacking ban. We are not talking about millions of people here. Global warming is obviously a global issue, and I do not suppose that anyone around the table would disagree about mankind’s responsibility for global warming. However, we are not here to talk about that. We are talking about a much bigger issue, for which it is harder to get an empirical evidence base.

On this issue, if this is the strongest argument in the arsenal of the pro-smacking lobby, why has there not been research that involved speaking to the families of those people who were convicted or accused of rape to ask them about their parenting techniques? Why has that research not been undertaken?

Professor Larzelere

I do not know the answer to that question, which is an important question. It is difficult to do research on parenting, because you are more limited in your ability to do the kind of randomised studies that would provide conclusive evidence. There is a little bit of that, but most of the research is correlational, which cannot be as definite with regard to what is causing what. That is the problem that I have been trying at least to improve upon in my 30-plus years of research on parental discipline of various kinds.

Alex Cole-Hamilton

So we cannot draw a direct causal link between the smacking ban and the increase in the number of rapes in Sweden?

Professor Larzelere

If I were a parent in Scotland and had a baby girl next year, I would want to be convinced that, when she was growing up, she would not face a 10-times greater risk of being raped before she was 15 years of age. I would want an answer to that question, to be convinced that that would not happen in Scotland.

Alex Cole-Hamilton

I have two soon-to-be adolescent boys. My wife and I have never hit them. Should we be anxious about their increased propensity to rape people?

13:15  



Professor Larzelere

No. You and I are from better backgrounds. We have all the advantages, as do our children. We need to make sure that the conclusions that we come to do not simply result in us imposing our parenting perspectives on all those who do not have the advantages that we have.

My research shows that, if children are well behaved or their form of non-compliance is more to do with negotiation, any kind of negative consequence, including time out as well as smacking, is adverse—in other words, it does not help them. Well-managed children do not need smacking, but parents of more defiant kids who push the limits need something to back up the milder discipline tactics that we all prefer when those milder tactics do not work for those children.

The Convener

Your studies are cited by many people who are pro the physical punishment of children. You have given a couple of quite emotive examples of why you think that children should be physically punished. What is your response to the argument that, as lawmakers, we need to follow evidence, not emotional arguments, when we make legislation?

Professor Larzelere

I absolutely agree with that, and it is particularly important in the areas of family law that we are talking about. In the United States, there is a group called the Association of Family and Conciliation Courts, which has realised that there is a big problem, particularly in family law, which it calls scholar-advocacy bias, whereby if research is used primarily to support just one side and does not try to be fair to all the evidence, that will be detrimental to the formation and the application of family law. It is important to avoid scholar-advocacy bias and to try to be as objective as possible in considering all the evidence across all perspectives.

The Convener

Before you began your work, were you neutral on the subject? Was it the evidence that persuaded you to adopt your current position, or did you have an opinion before you started your work?

Professor Larzelere

I had an opinion before I started it. I thought that, as the vast majority of parents had smacked their children for many generations, and the pendulum was swinging, there were, at least, correlations between smacking and various things.

To start with, my general hypothesis was that it was possible that smacking would be beneficial only if it was used in appropriate ways in appropriate conditions; obviously, smacking can be misused and overused, which makes its use detrimental. My main goal was to distinguish—all scientists need to make such distinctions—between the most effective form of any discipline tactic and when and in what way its use would be ineffective and counterproductive.

The Convener

I want to be clear about what you are saying. Before you began your research, were you pro the physical punishment of children? A yes or a no will suffice.

Professor Larzelere

No. I was pro-research. Let me read the conclusion of my first study on smacking, which was published in 1986.

The Convener

I am sorry, but I will stop you there. Our time is limited, so I will invite questions from the rest of the committee. We have a copy of your study.

Fulton MacGregor

Good afternoon, professor. I really appreciate your taking the time to speak to us, although I must admit that some of the views that you expressed earlier made me quite uncomfortable.

Alex Cole-Hamilton cited your view that the increase in the number of offences by juveniles in Sweden was partly related to young boys, in particular, not being told no by their mothers. Do you correlate being told no directly with physical punishment and violence?

Professor Larzelere

I am sorry—could you repeat the question? It is about boys not taking no for an answer from their mother and then not taking no for an answer from other people as well.

Fulton MacGregor

Sorry, professor—it is probably my accent. Do you correlate not being told no by a mother, father or another caregiver with physical violence?

Professor Larzelere

I am not sure whether this will answer your question, but when I hear comments from people whom I know are opposed to smacking but are good researchers, I take those into account.

I worked for people who were later asked by Norway to train all its therapists to help parents to manage their children’s difficult behaviour. They said that they were surprised to find so many parents with problem children coming to them who just could not say no to their children about anything. Those parents understood the smacking ban to mean that they could not do anything that would have any negative consequences. Therefore, they thought that they could not say no to their children about the most reasonable things.

That information comes from a top researcher in the field who is good enough to be recruited by the country of Norway to train parents how to discipline their children without the use of smacking. They, personally, have been against smacking all their lives, but they noted that a problem in Norway was that too many parents felt that they could not do anything that would have any negative consequences whatsoever. I hope that that answers your question.

Fulton MacGregor

In effect, I am asking whether you believe that the only effective way to say no to a young child is through physical punishment. That is what that quote from your submission seems to indicate.

Professor Larzelere

No, that is absolutely wrong. Like it is for you and everyone else, the goal is for parents to use the mildest disciplinary tactic and the mildest reasonable interaction to resolve conflicts with their children. The first plan is to use reasoning, to negotiate and to plan a mutually acceptable compromise to discipline children when there are problems. That should be the goal of all parents. However, when that does not work, that needs to be backed up by negative consequences, especially with the most oppositional defiant young children.

My research shows that reasoning works for pre-schoolers only if mothers back it up 10 per cent of the time with some kind of negative consequences, preferably time out and privilege removal. If that works, that is as far as that has to go. The children learn and pay more attention to the reasoning. However, the best research shows that, for children who will not co-operate with time outs, smacking can be effective in enforcing that co-operation. In that way, time out can be relied on to back up what a parent is trying to reason with the child about.

That whole sequence is important. Psychologists use it when they are asked by parents to help them to manage their out-of-control child who qualifies for a diagnosis called oppositional defiant disorder or conduct disorder. They train them to use time out, and, according to randomised studies, the best back-up for time out is smacking and a brief room isolation—those are the two most effective enforcement methods for time out that have been documented.

Mary Fee

You said earlier that you base your views and opinions on research. A significant amount of research shows that children who are disciplined by the use of physical force suffer negative outcomes, whether that is antisocial behaviour, mental health problems or, sometimes, problems with substance abuse. Have you looked at that research? If so, have you discounted it as having no credibility?

Professor Larzelere

My first study looked at correlations. It concluded:

“Most of the results of this study support the view that moderate physical punishment provides a training ground for violence, a training ground that differs from child abuse only by degree”.

That disproves that I am biased in one direction or another.

I will read that again:

“Most of the results of this study support the view that moderate physical punishment provides a training ground for violence, a training ground that differs from child abuse only by degree”.

That was based on cross-sectional and concurrent correlations. We cannot tell what leads to what. Does the aggression cause the child to be smacked more, or does the smacking increase the aggression?

Since then, in contrast to others, I have replicated the strongest evidence against ordinary smacking—

The Convener

We are having a little difficulty hearing you. Is there a piece of paper over the microphone at your end? Will you make sure that your microphone is clear?

Professor Larzelere

Should I repeat anything?

The Convener

No. It was just a bit crackly.

Professor Larzelere

Since then, I have repeated the strongest causal evidence against ordinary smacking. In contrast to others, I also used that same data to see how the alternatives that parents could use instead look in those designs. The results are the same for Ritalin and non-physical punishment. I replicated the strongest causal evidence against ordinary smacking, but non-physical consequences look just as harmful. So, if parents get professional help and have their child see a psychotherapist or put on Ritalin, that looks just as harmful as smacking in the research analyses that provide the strongest causal evidence against ordinary smacking.

Mary Fee

I am sorry to interrupt you. I will clarify what I was trying to get at. A significant amount of research has been done by respected academics into the effects that smacking a child can have. I accept that you have done a huge amount of research yourself, but did you look at other pieces of research by respected academics around the world and discount it? Did you take any of it into account?

Professor Larzelere

I have done my very best to take it all into account. For example, in 2005, I did the only review of the literature that has focused on not just smacking but the alternatives that parents could use instead. To do that, I considered all the studies from Dr Gershoff’s first meta-analysis, as well as all the studies from my earlier reviews of literature, so that I could consider fairly all of hers that qualified for my 2005 meta-analysis. My literature review found that the best way to use smacking was the way that psychologists used to train parents to use it—

The Convener

I am sorry—I realise that it is a little bit awkward, because we cannot see you. It would be easier if you were in the building with us. I will bring Alex Cole-Hamilton back in.

Alex Cole-Hamilton

My question follows on nicely from Mary Fee’s question and your detailed answer on the efficacy of so-called back-up smacking as a tool in the parenting arsenal, so that when normal parenting techniques fail and defiance is continuous, back-up smacking can deliver what is required.

We recognise that some children have learning disabilities that mean that they do not have the same developmental growth as children without those disabilities. Those children might never see the correlation between their behaviour and the physical punishment, and will continue to act defiantly. Would you support a partial ban on smacking for children with a diagnosed learning difficulty?

Professor Larzelere

That is an important question. I have not done specific research on the discipline of children with such disabilities, but I guess that I would want to be very careful about having a ban for them, because such bans have prevented the use of some of the most effective treatment programmes in the past. I am thinking about children who abuse themselves by, for example, hitting their head against a wall until they are bleeding. In at least some of those cases, at least some people feel that some use of punishment is effective. I would be very careful—

Alex Cole-Hamilton

I am sorry to intervene, but it sounds as if you are conflating physical punishment with restraint. Certainly in this country, no social care practitioner would use physical punishment as a tool to stop somebody harming themselves; they would try to restrain the person. Am I right that you are conflating those two things?

13:30  



Professor Larzelere

It is correct that restraint would be a first option but, if the person goes back to abusing themselves as soon as they cannot be restrained, that is not working. In some very good research that I have seen, the researcher has claimed that smacking could be used, at least in some cases. I do not know exactly how it was used, as I am not an expert on the issue and I did not do the research myself, but smacking was part of the most effective treatment for children who had the habit of abusing themselves.

Alex Cole-Hamilton

Obviously, with some medical conditions and learning difficulties, whether they come from acquired brain injuries or congenital defects, children will grow into adults yet their mental age will remain the same. Why should not we liberalise the laws on physical punishment to allow us to use the techniques that you describe when adults with learning difficulties are harming themselves or being defiant or outwardly violent?

Professor Larzelere

Is the point of your question whether those techniques should be considered assault?

Alex Cole-Hamilton

Some people in society will grow from children to adulthood but their mental age will never advance beyond three or four because of their condition. If we accept your argument that physical punishment is a necessary tool of control for them, is there a point at which they flip into adulthood and we can no longer hit them, or should we be hitting adults with learning difficulties?

Professor Larzelere

Absolutely not. As I said, I do not specialise in research on the discipline of people with disabilities. Other research has shown that smacking is adverse only if it is continued past age nine or 11. The benefit of back-up smacking is that it causes children to co-operate with other discipline tactics such as time out, so that smacking does not have to be used in future. I do not think—

Alex Cole-Hamilton

You are citing research that says that physical punishment stops being effective after kids are nine, 10 or 11, but that presupposes normal mental function. I am talking about people who are three-year-olds in adult bodies. Surely, that research does not apply to them.

Professor Larzelere

I know that research with such children and adults shows that clear consequences are important and that there is a need for positive consequences, rewarding them and having things such as time out. I worked in an organisation that had what is called a token economy, in which there were specific consequences and privileges were given or taken away to teach the use of more appropriate behaviour. That approach is effective with children with developmental disabilities. That did not include smacking, though.

Gail Ross

The bill aims to give children equal protection to that which is already given to adults under the law. If the bill is passed, we hope that it will also effect cultural change. We have taken a lot of evidence from experts in their field who say that the bill would provide clarity that does not exist at the moment. You advocate the use of smacking as a back-up form of punishment, but you have also mentioned misuse and overuse. There is a chance that smacking will be used as the main form of punishment, although that is not your stated aim. How do we know that the approach that you advocate is being adhered to in the privacy of the home?

Professor Larzelere

We do not, but it is better to help parents to know how to use all their discipline tactics as effectively as possible rather than have blanket proscriptions of discipline tactics that have been used by most parents for many generations.

I have forgotten the other part of your question. What have I not answered?

Gail Ross

People say that they are looking for clarity. If smacking is allowed as a form of back-up punishment, I do not think they would say that that gives any clarity.

Professor Larzelere

It is clear enough that psychologists used to train parents of out-of-control children to use smacking to back up time out, so that those defiant children would co-operate with time out. It was very clear to them. They prescribed and modelled two swats of an open hand to the rear end when children would not co-operate with the time-out chair. That was to be used only in that situation, when those defiant children would not co-operate with time out. The psychologists showed that, when that happened consistently, the children learned to co-operate with time out, so the parent did not need to use smacking any more. To me, that is a very clear prescription. I think that we need to discriminate between more and less effective ways to use all discipline tactics.

Gail Ross

If psychologists advocate that as a way to control unruly children, what does smacking in that form look like? Will you describe it? Is it on the back of the hand or the back of the legs? Is it one smack or two, or more? What is the recommended amount of smacking?

Professor Larzelere

When psychologists trained parents to do that, the best teacher I know used two hard slaps of an open hand to the rear end, only when children would not co-operate with time out. They wanted milder disciplinary tactics such as time out to be effective so that parents never had to use smacking.

Of course, people do not use the smacking back-up any more, and they do not often use the only alternative that has been shown to be as effective, which is brief room isolation. However, a study that I received from a Harvard professor this week says that treatments are now only half as effective as they were when the smacking back-up was used for time out. Dr John Weisz and his colleagues at Harvard University published that this week.

The Convener

Which professional psychological association advocates two hard open-handed strikes on the rear end of a child?

Professor Larzelere

Well, this is the problem of scholar-advocacy bias. Advocates want professional organisations to side with them, and—

The Convener

Sorry, professor, but I will pause you there. In your evidence to the committee, you said that psychologists working with families to teach that method advocated two hard—these were your words—open-handed strikes on the rear end of a child. Which professional association are those psychologists members of?

Professor Larzelere

There are no professional organisations that recommend that today, and for that reason—

The Convener

Okay—thank you.

Professor Larzelere

For that reason—

The Convener

That is fine. Thank you.

Professor Larzelere

—treatment is half as effective as it was back when smacking was used.

The Convener

Thank you. I hear your answer.

Professor Larzelere

I refer to that Harvard study that came out this week.

The Convener

We have some additional questions from the member who is proposing the bill, John Finnie.

John Finnie

Good afternoon, professor, and thank you for joining us. It has been a very interesting evidence session. With regard to the extensive research that you have done and the conclusions that you have reached, can you advise the committee when the optimum time is to commence striking a child hard with the open hand on the rear end? What is the age frame for that?

Professor Larzelere

The research that shows that smacking is an effective enforcement for time out was based on children between the ages of two and six, so that is where I can speak most confidently. I am not sure how far to extend it beyond that. I think that two to 12, which is the limit that Canada came up with, is a reasonable one, although in this country most mothers are smacking their children by 18 months. Given the lack of research, I would support the majority of mothers rather than banning that, until we have more evidence on how far to go beyond the ages of two to six. It should certainly not be done for any child under the age of 12 months. It is clear that that should be banned. Smacking of any kind should not be used for a child under the age of 12 months.

John Finnie

So, for a child aged 12 months to 18 months, two hard smacks with the open hand on the rear end is certainly appropriate.

Professor Larzelere

One paediatrician talked about a child who had a habit of biting electrical cords that were plugged into sockets, and apparently the parents could not get her to stop doing that. The paediatrician said, “Shouldn’t that child be smacked to prevent her from harming herself by biting an electrical wire that’s plugged into a socket?” That is one reason why I do not want smacking to be completely criminalised, but I think that it should be discouraged for children up to the age of two years, or 24 months.

John Finnie

For the avoidance of doubt, I note that we would seek to discourage anyone from biting electrical cables at any age.

Will you clarify whether, in your research, you have seen any benefits in the use of an implement in disciplining an 18 month to two-year-old?

Professor Larzelere

In my summary of all the research I could find that examined not just smacking but alternatives, physical punishment led to worse outcomes only if it was used too severely or as the primary means of discipline, and “severely” refers to the use of implements. There is no evidence to support the use of implements to smack a child. I know that there are some parents who see some advantage to that so, personally, I would be more comfortable with saying that parents can use an implement as long as it is not capable of inflicting more harm than the open hand, such as a rolled-up newspaper, for example.

John Finnie

Okay. Thank you for providing that clarity, professor.

The Convener

That brings us to the end of our evidence session. Thank you, professor. I recognise that there are challenges with doing this type of question-and-answer session down the line. I appreciate your time and the evidence that you have given.

At our next meeting, which will be on 28 March, we will take further evidence on the bill.

Meeting closed at 13:42.  



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Fifth meeting transcript

The Convener (Ruth Maguire)

Good morning, everyone, and welcome to the Equalities and Human Rights Committee’s ninth meeting in 2019. I ask everyone to please ensure that all mobile devices are switched to silent and put away. I welcome John Finnie.

Agenda item 1 is our final evidence session on the Children (Equal Protection from Assault) (Scotland) Bill. I welcome Maree Todd, the Minister for Children and Young People, who is supported by Scottish Government officials Simon Stockwell, who is the head of the family law unit; Sarah Meanley, who is from the family law unit; Scott Matheson, who is from the legal services directorate; and Maria Gray, who is from the parenting, play and baby box team. I invite the minister to make an opening statement of up to five minutes.

The Minister for Children and Young People (Maree Todd)

Thank you for inviting me to give evidence on the bill’s general principles. The Scottish Government supports the removal of the defence of reasonable chastisement in Mr Finnie’s bill for a number of reasons. We believe that children should have the same legal protection from assault as adults. The bill will achieve that, so Scotland will lead the way in the United Kingdom in providing such protection for children—as I am sure the committee is aware, the Welsh Government has just introduced its bill on the subject.

Removing the defence is consistent with international treaties, best practice and human rights. The removal reflects the growing body of evidence that physical punishment of children is ineffective and harmful. The bill will bring helpful clarity to the law that relates to the use of physical punishment, and it will send a clear message that it is unnecessary for parents and carers to use physical punishment to discipline children.

Our aim is for Scotland to be the best place in the world for our children to grow up in, and the bill will contribute to that. The Scottish Government recognises the need to raise awareness about the bill’s effect and to support parents and organisations in relation to the change that it will bring. That could build on existing work that is underpinned by our national parenting strategy.

This is not about telling parents how to parent; we will continue to support them and to provide information about positive parenting. Resources are tight, but we have formed an implementation group, which is considering the steps that will need to be taken if the Parliament passes the bill, including what will need to be done on public awareness. We will take on board any points that members of the implementation group and of the committee raise about steps to raise awareness.

I welcome questions from the committee.

The Convener

Thank you, minister. You said that the Scottish Government supports the bill’s principles. Why is public opinion on the topic so mixed?

Maree Todd

We support the removal of the defence of reasonable chastisement because we believe that children should have the same legal protection as adults. Public support for that principle is extremely strong—about 92 per cent of people who were asked agreed that children should have the same protection from assault as adults and only 2 per cent of the population would oppose that.

The Convener

The committee received quite a body of evidence from individuals who oppose the proposal. Why is that?

Maree Todd

The committee also heard evidence from people who said that the bill goes to the heart of how we were parented and how we behave as parents. The issue is difficult, but there is reasonable evidence that, since the Parliament previously discussed the matter, there has been a trend towards understanding that physical punishment is ineffective, that it is not a useful parenting strategy and that there are much more effective alternatives.

The Convener

Can the bill help to change how parents discipline their children?

Maree Todd

Certainly.

Oliver Mundell (Dumfriesshire) (Con)

How do you feel about the vehicle that is being used to introduce the measure? I am not sure how closely you have looked at the law in New Zealand but, in that context, does the bill represent the correct way in which to make the legal change?

Maree Todd

I think that it is an appropriate way of making the legal change. I have followed the committee’s evidence sessions, and I know that you and Conservative colleagues have asked questions about that a number of times. Ireland and New Zealand have made assault an offence in statute, whereas in Scotland assault is a common-law offence. I do not think that it makes much difference in practice. The aim of Mr Finnie’s bill is to remove a defence, and the relevant offence in Scotland is a common-law offence.

Oliver Mundell

My point, which I am putting as openly as I can, is that, although violence against children is wrong and not to be encouraged, what worries me about removing the defence—this is where we see a difference between the 92 per cent that you have pointed to and the 75 per cent figure that comes out of surveys—is that there seems to be a grey area between what people would see as being assault and what they would see as parents probably acting in the best interests of the child. There seems to be some confusion about what the tests and thresholds would be. The New Zealand law sets out a number of situations in which it would be okay to use force—for example, to prevent or minimise immediate harm to a child or another person, or where it would prevent a criminal act from taking place. Do you think that things like that should be considered by the committee?

Maree Todd

The bill’s approach brings helpful clarity to the legislation. Instead of increasing confusion, the bill will make it clearer to parents what they can and cannot do. There will be a clear message in the legislation that physical punishment of children is not an acceptable strategy. I am very pleased to hear that there is Conservative support for the principle that physical punishment is not acceptable.

Oliver Mundell

In that case, if the bill is passed, will parents legally be allowed to physically punish their children in certain circumstances?

Maree Todd

The defence of reasonable chastisement—

Oliver Mundell

I asked a yes or no question, minister. If the bill is passed, will there still be circumstances in which, under Scots law, parents will be permitted to physically punish their children?

Scott Matheson (Scottish Government)

I can perhaps assist with that. It is not the role of the Scottish Government to determine what the outcome of a particular criminal case should be; that is a matter for the courts. The decision whether to prosecute will be for the prosecution authorities to take, independently of ministers. The bill is removing a defence that has formed part of the common law of Scotland for a very long time and that has been modified by statute—a defence to a common-law crime of assault. There are other defences that Scots law recognises in relation to crimes involving assault, of which self-defence is one example. Other jurisdictions may have traditions of legislating specifically. As we do not have a codified criminal law in Scots law, that is generally not the approach in Scotland. The outcome of a particular case will depend on the facts and circumstances of the case; the Scottish Government could not really say in advance what the outcome would be.

Oliver Mundell

I guess that, if the aim is to provide clarity—or increased clarity—for parents, surely it would be helpful to set out some thresholds or tests in statute, or to provide some guidance as to where those tests would be met.

You talk about the defence, but my understanding—I am happy to accept that I could be wrong—is that the presence of a defence often influences the decision whether to prosecute. Therefore, removing a defence opens up the possibility of prosecution for behaviour that might previously not have been prosecuted. Am I right or wrong?

Scott Matheson

I do not know that I can go much beyond saying that, in circumstances in which, under the current law, parents or other people exercising a similar role would be able to rely on the defence of reasonable chastisement, under the bill, they simply will not be able to do that. The prosecution authorities would, no doubt, take that into account when deciding whether going ahead with a prosecution would result in the necessary likelihood of a successful conviction and whether a prosecution would be in the public interest.

Oliver Mundell

What about the thresholds question? Do you not think that it would be reasonable to set out thresholds so that parents would know what type of behaviour would be captured by assault and what would not?

Simon Stockwell (Scottish Government)

Any guidance on prosecutorial matters would be a matter for the Lord Advocate and the Crown, not for the Scottish Government.

Oliver Mundell

I am talking about the Scottish Parliament passing legislation. Do you not think that it would be helpful to provide clarity for parents—as we do in other criminal law—by setting out in black and white, in statute, the tests that one would expect to be met if the use of force by parents was to constitute assault? Would that not provide clarity?

Simon Stockwell

I think that you would end up with something close to what you already have. That is exactly what Mr Finnie’s bill is trying to remove. It is trying to take away the defence of reasonable chastisement and make it clear to parents—as the minister said—that physical punishment is wrong. If members added material to the bill, the result would be something pretty close to the current law, which would be contrary to what the bill is trying to achieve.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Thank you for coming to see us today, minister. I have some questions about rights, and then I will test some of the arguments against the bill.

In her programme for government speech, the First Minister gave a commitment to incorporate the principles of the United Nations Convention on the Rights of the Child, and you know that I support that measure. Could we incorporate the principles of the UNCRC without the bill?

Maree Todd

That is a bit of a theoretical question, because the Government is supporting the bill, which incorporates the principles of the UNCRC.

Alex Cole-Hamilton

My question was not a trap. Every time that the UN Committee on the Rights of the Child visits us, the concluding observations refer to the fact that we still allow the physical punishment of children. It was a loaded question to determine whether continuing to allow physical punishment in the home is compatible with incorporating the UNCRC to an internationally recognised standard.

Maree Todd

I think that removing the defence of reasonable chastisement is absolutely in line with international treaties, our obligations and international best practice. As I said in my opening statement, many countries around the world have already taken that step. Although, as the member knows, Scotland likes to lead the way in human rights, we are following on this issue.

Alex Cole-Hamilton

Do you recognise any conflict between children’s rights, as inscribed in the UNCRC, and so-called parents’ rights—the right to family life and so on? We have heard some evidence on that from people who do not support the bill.

Maree Todd

I listened carefully to that evidence and I understand their concern, but I do not see a conflict. The bill will bring helpful clarity that the physical punishment of children is not acceptable. There is no conflict between the rights of a child and the right to family life on that issue.

Alex Cole-Hamilton

I will briefly test some of the arguments against the bill that we have heard. In several evidence sessions, the suggestion has been made that removing the right to physical punishment—or, rather, the legal defence that allows physical punishment—could endanger some children, because physical punishment is sometimes necessary to prevent harm, as in situations such as when they are pulling down a boiling pan of water from the stove or running out into traffic. Are you concerned that, by removing that parenting tool, we are putting children at risk of hurting themselves?

Maree Todd

No. I watched the evidence on that issue carefully, and I agree with the evidence that the committee heard, which is that physical punishment is not necessary to prevent harm in those circumstances and that the usual strategy for a parent would be to put themselves between the child and the harm and to hold the child close. Parents do not need to punish children in those circumstances. Some of the evidence suggests that punishing a child in those circumstances adds to their confusion and does not help them to learn a lesson.

09:15  



Alex Cole-Hamilton

An argument that came out of that discussion related to adults with learning disabilities. Some adults with learning disabilities never have a mental age above that of a child, so is it incongruous that we currently allow one form of discipline for three-year-olds and a different form of discipline for people who are 24 but who might have a mental age of three?

Maree Todd

That is an interesting argument. In the committee’s previous evidence, somebody asked whether we would use physical punishment to prevent an elderly person with dementia from crossing the road and putting themselves in harm’s way. That would be inconceivable for most of us, so why would we use that strategy for a small child? There is a growing body of evidence that physical punishment harms children and that it is an ineffective strategy for discipline. The time is right for us to take this step, because the argument that using physical punishment can prevent harm is weak.

Alex Cole-Hamilton

We have heard conflicting evidence from panel members on the impact that such behaviour has on the use of violence as a tool of punishment. On the one hand, the police and Scottish Women’s Aid have said that, for as long as we allow violence in the home, we will not be able to eradicate domestic violence and that it will spill over into our streets because children will have learned that behaviour. However, on the other hand, last week, Professor Larzelere, from America, cited the case of Sweden and said that, since the removal of the defence for smacking in Sweden, in 1979, there has been a huge increase in the number of assaults and rapes by juveniles. He suggested that that is because children have never been taught to accept the answer, “No.” Where do you sit on that divide?

Maree Todd

Last week’s evidence from the American professor was not at all convincing. There was no causal association between the two findings. We could say equally that, since 1979, when the defence was removed, there has been a massive increase in the number of moose road traffic accidents, but there is no link between those two things.

The most convincing body of evidence has come from health professionals, including the paediatrician who gave evidence to the committee, the American Academy of Pediatrics and our body of paediatricians and public health organisations in the United Kingdom, who have all said that it is harmful to use physical punishment against children. When Lucy Reynolds gave evidence to the committee, she made it very clear that children learn by mimicry and gave evidence of children who had witnessed violence using violence themselves in play.

In science, there are always voices that challenge the evidence, but I am very clear that the body of evidence supports the idea that using physical violence in the punishment of children leads to a greater likelihood of those children using violence when they are older. There is a strong link between someone having been physically punished and their having behavioural problems later in life.

Alex Cole-Hamilton

On Skye, and during questioning from Gordon Lindhurst in our various evidence sessions, we heard that physical punishment is regarded almost as an article of faith by some Christian groups and that some passages of scripture suggest that such behaviour is normal parenting and part of the lived faith of Christians. Is the bill an assault on their right to parent their children as their faith suggests they should?

Maree Todd

I do not think so. I listened with interest to the evidence that was given by the various faith groups. There does not seem to be consensus even within the Christian faith, because the Church of Scotland and the Quakers strongly support the bill. I do not think that we can put forward the argument that the bill will prevent people from partaking in their religious practices. There is growing evidence that smacking is harmful to children and that it is an ineffective form of discipline, so it is right that we are bringing clarity to the situation and the bill is an effective tool with which to do that.

Annie Wells (Glasgow) (Con)

I have just one question for the minister. We have heard from a lot of witnesses who believe that the bill should not criminalise parents. Do you feel the same?

Maree Todd

I think that the evidence in other countries that have introduced such a measure is that it does not lead to a large number of prosecutions. As you know, in Scotland, we take a GIRFEC—getting it right for every child—approach. We are very keen to provide, at an early stage, support to families from the right person at the right time. If anything, I suspect that the bill will lead to increased support for families, not increased criminalisation.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I will follow up on two lines of questioning that I have been pursuing throughout the evidence sessions.

The first is about current child protection processes. When we first started taking evidence, there was some concern that there could be criminalisation of parents—as Annie Wells said—an increase in child protection processes and more interference from the state in families’ lives. However, we heard good evidence from both the police and social work that they do not think that those things would happen. Has the Government thought about the implications for child protection processes?

Maree Todd

Yes, and, like the police and Social Work Scotland, we do not think that there is going to be a huge impact on current practice. We already take a GIRFEC approach in Scotland. We are keen to offer support to families and to get support in at an early stage, from the right people at the right time, in order to support families to parent well.

Fulton MacGregor

So you do not envisage an increase in child protection measures being taken—child protection registrations—as a direct result of the bill alone.

Maree Todd

I do not think that that will happen, but the implementation group will look at those issues, which involve Social Work Scotland and Police Scotland. If issues arise during the passage of the bill that we need to pay attention to, we will pay attention to them, but I do not think that there will be an increase.

Fulton MacGregor

If there is an increase in child protection registrations, could it be argued that that is happening because of the earlier identification of children who are at risk?

Maree Todd

That is the approach that we take in Scotland anyway. We are very keen to identify children who might be at risk and offer support at an early stage, so that things do not deteriorate for them. In Scotland, our approach is very much predicated along those lines—getting it right for every child is about getting the right help from the right person at the right time, ideally at an early stage to avert a crisis.

Fulton MacGregor

My other question relates to something that was first raised when the committee visited Skye, and which I had not particularly thought about beforehand. We heard evidence that the bill, if passed, could have a disproportionate effect on vulnerable families who maybe already have agencies involved. Have you followed that point through the evidence sessions, and does the Government have any thoughts on it?

Maree Todd

I saw that evidence, but I do not think that there is any particularly strong evidence to support it. As I said, the approach in Scotland is around getting it right for every child. Where there is already state involvement with families, the aim is to support those families and to improve the situation for the children.

Mary Fee (West Scotland) (Lab)

My first question follows on quite nicely from Fulton MacGregor’s final question and relates to an issue that has been raised throughout the evidence sessions. Are you aware of any evidence that suggests that children from specific equality groups are more likely to experience physical punishment?

Maree Todd

I have looked for evidence of that, but there is no particularly solid evidence from which we can draw conclusions on the issue. There is some international evidence, but I am not sure how applicable it is to the Scottish situation.

Mary Fee

That is helpful. You say that there is no solid evidence on the issue. If the bill is passed, the Government will do some awareness raising, and I know that other members want to explore the broader issue of what the Government will do in that regard. Will you tailor that awareness raising and the support that you offer so that it includes families that have social work involvement or in which there are children from specific equality groups?

Maree Todd

Absolutely. We are keen to ensure that all families are aware of the legislation. We already have really good channels for getting information to such families. We have the useful parent club website, which is well used and appreciated and which provides a great deal of information on positive parenting. We also have support packages in place. The level of health visiting has increased, and we have family nurse partnerships. There is a good level of support for such families already, so they should be well informed about the proposed change.

Maria Gray might want to say a bit more about the ways in which we provide information on positive parenting to parents in Scotland.

Maria Gray (Scottish Government)

As the minister said, we have the parent club website, which is a resource that we would like to develop as a one-stop shop for families with a range of information and advice on issues such as healthy eating and sleep and on using positive parenting techniques to manage behaviour. The development of information for the website is being done in partnership with parents. Behaviour management is definitely one of the key tasks on which parents need information.

We also publish resources such as “Ready Steady Baby!”, which has recently been refreshed and relaunched, and “Ready Steady Toddler!”, which provide a wealth of information from health professionals about positive parenting techniques.

Mary Fee

That is helpful.

I want to ask about restraint, which I have raised in other evidence sessions. Could the bill deal with restraint? If not, is restraint on the Government’s horizon to pick up at a later stage?

Maree Todd

I have noted the points that have been made—I recognise that they are very serious—about the use of restraint in residential care settings. I do not think that the bill is the appropriate place to consider the issue, because restraint is very different from punishment. Restraint is about prevention. It is used in narrowly defined circumstances and is about keeping the individual and those around them safe. Although I do not think that the bill is the appropriate place to consider the use of restraint, I would be happy to consider separately any points on the matter that you wish to raise.

Mary Fee

That is helpful. Restraint is not used only in looked-after settings; it can also be used with young adults who have additional support needs. Although I accept that restraint is used for protection, there is a very fine line between protection and harm when it comes to the degrees of restraint that are used. I would be keen to explore that with the minister at a later stage.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

A concern that has been put to us is that the bill might result in an increase in the burden on public services, but we have heard in evidence that, in countries that have implemented similar legislation, there has been only a slight increase, if any, in the number of prosecutions. Do you think that the bill will result in an increase in the burden on public services?

Maree Todd

No. I agree with you. I think that the evidence from around the world is quite convincing in showing that such legislation does not increase the number of prosecutions or the burden on public services. There is very strong evidence from Ireland, where the change following the introduction of the legislation was nowhere near as dramatic as had been foreseen, because it fitted with where parents were at the time.

Gail Ross

One of the aims of the bill is to encourage a cultural change. Is the bill the right way to do that? We have been told in evidence that an education and public awareness-raising campaign might be enough on its own. What is your opinion on that?

09:30  



Maree Todd

I do not think that it is a choice of one or the other. Education and awareness raising are a necessary part of the cultural change that we wish to achieve. It is difficult to educate and raise awareness if the legislation allows people to do something else, and that is where you see an unhelpful ambiguity. We will see the most successful cultural change if we go down the route of education and awareness raising as well as changing the legislation so that it is absolutely clear that physical punishment is not allowed in Scotland.

Gail Ross

If, for whatever reason, the bill does not pass, does the Scottish Government have any plans to go ahead with an awareness-raising or education campaign anyway?

Maree Todd

Maria Gray talked about parent club and we have a range of supports, information and awareness-raising programmes from parent club and “Ready Steady Baby!” to the types of support that are available to parents from professionals, such as health visitors and family nurse partnerships. There is also new information on the new perinatal mental health strategy. All those supports are in place around families already.

It would be difficult to achieve the cultural change without making the law absolutely clear. You cannot have an educational strategy that says one thing and a law that says another.

Gail Ross

In one of our evidence sessions, we heard about an organisation that works with families and single mothers who do not have English as a first language. It was put to us that, if the bill was not backed up with the right amount of awareness raising in that sector, it might have an adverse effect on those women, who are already under quite an amount of stress. How would we reach them?

Maree Todd

The last time that we brought out written guidance in 2003, it was published in a number of different languages. We are more than happy to look at doing that again. I would like to think that the implementation group will pick up on those issues. We are keen to ensure that every parent in Scotland recognises that the law is changing and that physical punishment is not acceptable in Scotland.

Gail Ross

The point was also about the lack of interpreters in various languages. You mentioned the implementation group. Could you tell us a little bit about that? For example, what is its remit and membership?

Maree Todd

Simon Stockwell will deal with that question.

Simon Stockwell

The implementation group has met twice. Its remit is to look at what needs to be done to implement the bill, if enacted—what guidance might be required for professionals such as social workers and what awareness-raising and marketing campaigns might be needed.

The group’s members include Police Scotland, Social Work Scotland, the Crown Office and Parenting Across Scotland, among others. We publish the minutes on the website once they have been approved.

At its first two meetings, the main points that the group looked at were the guidance that might be needed for professionals and possibly mainstreaming that into other guidance, particularly for social workers, and initial thinking about what might be needed by way of awareness-raising and marketing campaigns.

Gail Ross

Thank you. That leads me nicely to my final question. In his financial memorandum, John Finnie estimated that the cost of a campaign would be around £300,000. The Scottish Government’s estimated cost is £20,000. That is quite a big discrepancy. Can you explain how you got to that figure?

Maree Todd

There will always be differences in costs. We are reasonably confident that we already have strong lines of communication and that it would be reasonable to consider using those communication channels to raise awareness initially.

There is a range of views, and we will certainly take on board what the implementation group discovers during the passage of the bill. I was also interested to note that Jillian van Turnhout said that there was no budget in Ireland to raise awareness of the issue.

The Convener

The plan is for the bill to be implemented 12 months after royal assent. Are you confident that that is achievable?

Maree Todd

Yes.

The Convener

That was a good, quick answer.

Can you foresee any circumstances in which the Scottish Government might have to use its delegated powers in relation to the bill?

Maree Todd

I do not think so.

Alex Cole-Hamilton

We have discussed public opinion, and you were right to say that 92 per cent of people agree that children should enjoy the same protection from assault as adults. However, when you spell out to people that that means that parents will not be able to physically punish their children, things change quite dramatically in the polling. It all comes down to the wording. In other countries that have gone down this route before, there has been similar public resistance to legislation. In Belgium, for instance, 75 per cent were against a ban on smacking—even though that is not necessarily what the bill does—which is roughly similar to the figure here. As politicians, should we be worried by that? Should we always follow public opinion in the policies that we devise, or should we seek to lead public opinion?

Maree Todd

That is an interesting question. I read the papers accompanying the bill last night and was very interested to see that 80-odd per cent of parents of small children do not believe that smacking is an effective disciplinary tool. I do not think that the bill is wildly out of step with public opinion. The important thing for us to do is to bring clarity to the situation and say that physical punishment is not acceptable in Scotland. The body of evidence around the physical punishment of children is that it is harmful to their emotional and mental health and that it is not an effective disciplinary strategy. It is important that we put forward strong alternative positive and effective discipline strategies and empower parents to use them.

Oliver Mundell

You have used two different forms of words throughout the meeting, but you have just said that physical punishment is not acceptable. I come back to the point about whether there is a difference between something being acceptable and something being legal. Does the bill ban smacking?

Maree Todd

The bill does not introduce a new criminal offence; it removes a defence. I do not know—

Oliver Mundell

That does not sound very clear to me.

Maree Todd

I think that you are dancing on the head of a pin here. I think that it is clear—

Oliver Mundell

If I am dancing on the head of a pin—

The Convener

Mr Mundell, please address your comments through the chair. We will listen to the answers.

Oliver Mundell

Sorry, convener. I know that I am dancing on the head of pin, but for people who go to court and go through these processes, decisions often turn on the head of a pin, if that is the measure of it. I just want an honest answer. Does the bill, as introduced, ban smacking—or behaviour that is commonly known as smacking—or does it just point people in a direction that says that smacking is not acceptable?

Maree Todd

The bill removes the defence that says that smacking is reasonable chastisement. I will not comment on individual cases—there may well be circumstances that have to be taken into account in decisions about whether to prosecute. A number of other defences can be used, but the defence of reasonable chastisement will be removed, which I think will make a clear statement that the physical punishment of children in Scotland is not acceptable.

Oliver Mundell

In your view, does that mean that physical punishment will, to all intents and purposes, amount to assault? Is that how you would hope the courts would interpret it?

Maree Todd

As I have said, we are not creating a new offence. Physical punishment already amounts to assault, and a defence is in place that can be used. We are removing that defence. I think that that is clear.

The Convener

Minister, I thank you and your officials for your evidence. We will suspend briefly to allow the witness panels to change over.

09:39 Meeting suspended.  



09:44 On resuming—  



The Convener

I welcome panel 2, which comprises John Finnie, the member in charge of the bill, who is supported by Steven Dehn, researcher; Nick Hawthorne, senior assistant clerk in the Scottish Parliament’s non-Government bills unit; and Catriona McCallum, from the office of the solicitor to the Scottish Parliament. I invite John Finnie to make a statement of up to five minutes.

John Finnie (Highlands and Islands) (Green)

I will be brief. I thank the committee for inviting me to give evidence on my bill, for its diligent examination of the issue and for the support from the team. I am grateful for the Scottish Government’s support for my bill and for the minister’s support since the initial consultation in 2017. I thank the people who are with me—Nick Hawthorne and his colleague Kate Blackman from the Parliament’s NGB unit; Catriona McCallum from the office of the solicitor to the Scottish Parliament; and my colleague Steven Dehn, who is my office manager—for their tireless work.

I was approached after the election by a coalition of children’s organisations—Barnardo’s Scotland, the NSPCC in Scotland, Children 1st and the Children and Young People’s Commissioner Scotland—about introducing a member’s bill on the simple proposal that children should have the same legal protection from assault as adults have. I am immensely grateful to those organisations for their support and encouragement since then.

The growing body of international evidence shows that the physical punishment of children harms their development and is an ineffective means of discipline. Through the bill, I intend to bring clarity to the law by removing the defence of reasonable chastisement, which is sometimes referred to as justifiable assault, and to send the clear message that the physical punishment of children is unacceptable. The bill is a vital step in achieving the necessary change in our society’s culture, much as the smoking ban was a necessary legislative step in making Scotland a healthier place to live in.

My bill will bring Scotland into line with what is becoming the international standard, which applies in 54 countries—from Sweden in 1979 to Ireland in 2015, Nepal last year and Jersey this year. I am sure that all parties agree that we should work together to ensure that Scotland becomes the best country in the world for children to grow up in. I strongly believe that, if it is passed, my bill will play a vital part in making that aim come to pass.

I was pleased to note the minister’s comment that the Scottish Government is working closely with organisations to ensure that, if the bill is passed, its implementation will run smoothly. I welcome questions.

The Convener

On committee visits to grandparent groups and parent groups and in work that we have done with children and young people, we have heard mixed opinions about the proposal. Some people have campaigned passionately against changing the law. What are your reflections on why that is the case?

John Finnie

The issue draws strong opinions, for various reasons. A number of people have touched on the notion that the change would be a historical judgment on them and their parents.

A person’s response often depends on how the question is framed. In the consultation on the proposal, 75 per cent of respondents supported it. In a significant survey of 70,000-plus young people in Scotland whom the Scottish Youth Parliament consulted, support was way up in the high 80 per cents.

How the question is asked matters. If people are asked whether children should have the same protection from assault as adults have, the overwhelming majority say that they should. That is about the framing.

Oliver Mundell

I am interested in how the bill is drafted. If you think that physical punishment is fundamentally wrong, why did you not choose to make it unlawful and make the position clearer in the bill?

John Finnie

I was present during the previous evidence session, so I heard your comments then. Clarity is required, which the bill will deliver. There is widespread public awareness of the proposal. As the committee has heard, many people think that smacking children is already illegal. The bill will build on that.

You are entirely right that people need to understand the parameters, which should make it clear that the physical punishment of children is unacceptable. Clarity can be provided elsewhere in relation to the concerns that many people have raised about children running on to the road and being exposed to boiling water. As a parliamentarian, you will know that there is often a clamour to put things in a bill. Such issues do not require to be addressed in the bill, which deals with a specific issue—the deletion of a statutory defence to a common-law crime. That is a clear proposal.

Oliver Mundell

When a similar defence was removed in New Zealand, it was made clear that nothing in law would justify the use of corrective force. If that is your belief and you want to make that intention clear to parents, why would you not want to make it clear in the bill and thereby avoid leaving what the Law Society described as a grey area, albeit a small one? In the previous evidence session, the minister and two legal representatives of the Scottish Government said that there could be difficult cases and suggested that it will be for courts to decide. Do you not think it would be better for Parliament to make that clear?

John Finnie

I do not wish to appear pedantic, but I do not know what you mean by the term “correct force.”

Oliver Mundell

It was “corrective force”, which I think is their equivalent to physical punishment. The force would be used to correct behaviour.

John Finnie

That is interesting. I come armed with lots of information, including references to different legal systems. The reality is that I can deal only with the system that is here—that is my obligation as a parliamentarian. I think that there is clarity. Given your helpful comments about not seeing a role for the physical punishment of children, it would be unhelpful to suggest that anything other than clarity will come out of this. However, pivotal to that is public awareness. There is a lot of support available already, which you heard briefly about. I have with me a lengthy document that covers the very targeted support that is appropriate; that would continue and would pick up on this proposal if it were adopted by Parliament.

Oliver Mundell

What concerns me as a legislator and a member of Parliament is not knowing what the threshold would be. I have a bit of discomfort about that. You think that the threshold should be zero. In your understanding, would all physical punishment be assault?

John Finnie

Yes, indeed.

Oliver Mundell

That is helpful. When I hear the Scottish Government’s legal team say that it would be up to the courts to decide where the threshold is, I find that concerning, because at the moment we do not have any case law on that.

John Finnie

With respect, I think that we are maybe talking about slightly different things. Judgments are made on a daily basis by professionals, be they teachers in schools, social workers or Police Scotland staff. You heard compelling evidence about how those organisations work together. Judgments are made about interests—the interest of the child is foremost. I think that there is clarity, but of course that needs to be reinforced.

Oliver Mundell

That is helpful. Thank you very much.

Alex Cole-Hamilton

Before I ask similar questions to those that I asked the minister, I want first to thank John Finnie for being here today and for the bill. He knows that I am a fellow traveller in this area. I thank him also for the inclusive approach that he has taken.

I want to ask a brief supplementary to Oliver Mundell’s questions. John Finnie mentioned weighing up interests. I agree that the threshold should be zero—that physical punishment should always be viewed as assault—but is it fair to say that a second judgment is taken by the police or procurator fiscal as to whether it is in the public interest to raise criminal proceedings against a parent who has been accused of assault?

John Finnie

There is a proportionality test, which relates to the duration of the matter, the status at the time and the impact that it had. The authorities consider a whole load of factors on a daily basis.

Alex Cole-Hamilton

Do you agree that in other jurisdictions that have already brought in this restriction on physical punishment, such as New Zealand and Belgium, the application of it seems to be quite light touch and there has not been a huge number of prosecutions?

John Finnie

Indeed—quite the reverse is true. There has generally been a slight increase in reporting, which you can understand, and which is not problematic, but not in prosecutions. It goes back to the purpose of this. The purpose is not to prosecute people; it is to set a clear direction of travel. That happened previously and future generations will wonder that this establishment discussed whether it was appropriate to strike a blow to the head of a toddler with an implement, for instance—that will seem strange. What is proposed is a progression of that—setting a clear direction of travel while providing appropriate support.

Alex Cole-Hamilton

I want to ask about rights. We know that the Government made a commitment to incorporate the principles of the UNCRC into Scots law, as stated by the First Minister in her programme for government speech. Would not making this change be compatible with incorporating the UNCRC? Would the UN say, “Yes, Scotland, you have incorporated the UNCRC,” if we were still punishing children physically in the home?

John Finnie

That would be completely incompatible with the UNCRC. We have heard of the international concern about the position in Scotland and indeed elsewhere in the UK and in some other countries. That situation would be incompatible with the UNCRC and it is for that reason that I hope that Parliament will pass my bill.

Alex Cole-Hamilton

Do you recognise the tension that exists between children’s rights and parents’ rights—or a parent’s right to family life and to bring up their children in the way that they see fit?

John Finnie

I understand that people perceive there to be a tension. I think that we all have rights; I do not think that there is a hierarchy. Very simply, it is about how the whole issue is framed. If you say to people, “Do the most vulnerable people in our communities deserve equal protection?”, many would say, “No, they deserve better protection.” I do not see the conflict that some people do.

Alex Cole-Hamilton

May I test some of the arguments against your bill with you? We have heard a lot about protective punishment—physical intervention and chastisement to prevent a child from coming to harm, whether that is because of a pan of boiling water on the stove or running into traffic. Are you concerned that by removing that parenting tool, we are exposing to harm children who would otherwise have been protected via a slap on the wrist or the bum to prevent them from harming themselves?

John Finnie

A committee witness at an earlier meeting gave the example of a child running into the road and then expressed some incredulity that the response would be to strike them. They said, “No, I would put a protective arm around them and reassure them.” People need to be aware that in the home, there are hazards everywhere and it is the duty of all of us to make homes as child proof and child friendly as possible. I do not think that there are issues around that at all.

Alex Cole-Hamilton

If we agree that behaviour is a product of mental process, is it incongruous that a three-year-old might receive physical punishment as a tool of sanction for their behaviour or to protect them, but an adult with incapacity who has a mental age of three would not? Do you feel that we should not apply something just because somebody is smaller and less developed than an adult?

John Finnie

Absolutely. Physical punishment also causes confusion and it sends a peculiar message. You have heard previously from professionals that if the answer to a difficulty, whatever that difficulty might be, is to apply violence—and that is what smacking, as people would call it, is—it sends a peculiar message to children, who are at the most formative point of their development. This is about child development and brain development and the signals and messages that are sent by parents, carers and, indeed, the community.

Alex Cole-Hamilton

You mentioned violence, and there is a debate in the evidence that we have heard about the causal link between smacking—physical punishment—in the home and violence. Scottish Women’s Aid cites the link with domestic violence, as do the police, who also cite the link with violence on our streets, where children exhibit learned behaviour to one another through the use of violence as a tool of coercion, sanction or revenge.

The converse of that is what we heard from Professor Larzelere from America last week. He cites a potential causal link between the smacking ban in Sweden and an increase in assaults by young people. Where do you sit in relation to that debate?

John Finnie

The least said about last week’s evidence from that professor the better. I understand that the committee is in receipt of a very direct letter from a fellow academic in North America, who has confined her comments to the professor’s four most outrageous assertions. There is no credibility associated with those assertions.

I could leave it there, but the issue touches on a concern in relation to the bill. It is to do with people’s perceptions about the historic application of smacking. The example of smoking is used. People now accept that smoking causes harm but point out that if you were exposed to smoking as a child, that does not mean you will get lung cancer in later life. However, if you get lung cancer in later life, it is very likely that you have had that level of exposure.

There is a connection between physical punishment in childhood and subsequent violence, and it is appropriate to point out that it is not just the academics who have said that. When we have people from Scottish Women’s Aid and the violence reduction unit, who are at the front line of dealing with issues of violence in our communities, saying that there is a link, we should listen.

Alex Cole-Hamilton

You joined us on our road trip to Skye and heard that some faith communities in the west of Scotland regard a parent’s right to physically chastise their child as an article of faith, citing scripture to defend that right. Would removing that right be an assault on their religious freedoms?

10:00  



John Finnie

It most certainly would not. I respect people’s right to hold views, but I thought that the evidence that the committee heard from the reverend from the Church of Scotland and the Quaker representative was very compelling. They said that it is a matter of interpretation. I do not wish to be offensive to anyone, but no one’s individual views trump the collective view of the community.

Fulton MacGregor

Like Alex Cole-Hamilton, I say well done to John Finnie for taking the bold move of introducing the bill. I will ask similar questions to those that I asked the minister, and I know that you were here for that session. If the bill is passed by Parliament, what impact will it have on existing child protection arrangements and processes?

John Finnie

Last week, the committee heard compelling evidence from a front-line practitioner—indeed, he is the gentleman who is responsible for looking at the daily reports in Edinburgh, our capital city—that there will be no impact. You also heard that from the chief superintendent of Police Scotland, who has had previous involvement in the area. Front-line services deal with issues on a daily basis, and the provisions in the bill will be another aspect that they will need to address. The issue is about the support that is put in place, and there is a lot of support out there.

Fulton MacGregor

You touched on this point earlier, but is it fair to say that the bill is intended not to increase state intervention in family life or the number of prosecutions, but to change the culture?

John Finnie

It is. Passing the bill will show that the Parliament has listened to the overwhelming evidence—such as that from Dr Anja Heilmann and the vast amount of research on equal protection—that says that any exposure to violence in a child’s formative years will have a negative effect. A lot of parliamentarians talk about adverse childhood experiences—that phrase has become part of our everyday parlance—and the physical punishment of children must be regarded in a similar way. It would be very strange if Parliament did not respond to that overwhelming research.

Fulton MacGregor

I know that you will have heard this issue being raised, because you have attended every evidence session. In Skye, we heard that the bill, if it is passed, might have a disproportionate effect on families who are already vulnerable. However, since then, we have heard evidence that does not back up that argument. Do you have a view on that point?

John Finnie

Many academics have expressed the view that physical punishment is sometimes used by people who are under pressure, and there is no doubt that we have families who are under considerable pressure for a number of reasons. Those are the families who are targeted for specific additional support by social work services and health boards.

It is wrong to suggest that there is a particular geographic area or social stratum that punishes its children physically; such behaviour happens across the board.

I have no concerns that the targeted support that exists could not be ramped up if that was required. A broad range of support is available, from someone simply being able to seek advice by going online or picking up a phone to parentline, to very targeted support for young mothers.

Annie Wells

Some witnesses have said that the bill should not criminalise parents. Do you agree?

John Finnie

The bill’s intention is not to criminalise parents, but to set out a direction of travel about child welfare and child upbringing. At the moment, parents can be criminalised for using excessive force against a child, so the bill is about sending guidance and putting support in place. We should be saying that all the evidence tells us that there are better ways of disciplining children. The bill is not about criminalising anyone, but about supporting children.

Mary Fee

I want to ask about equality groups, which you will have heard me ask about in a number of evidence sessions. Rather than ask the specific question that I asked the minister, can I ask you to give us some information about the equality groups that support the people to whom you spoke while you were taking evidence? You said that you spoke to a number of children’s organisations, but did you speak to the organisations that specifically provide support to families that have children who require additional support?

John Finnie

We had engagement with a considerable number of people, and I understand the particular pressures that are associated with some communities. We heard earlier about the cultural challenges that might be faced by people who have moved to Scotland from a place where certain levels of punishment are appropriate.

I have also listened to the evidence about parents of children who have additional needs. It is clear that we need to be sensitive to the different ways in which support might need to be provided, but I do not think that any group is going to be disadvantaged, which is what equality legislation is about. It is about ensuring that everyone is treated equally. To do that, we do not necessarily treat people the same way, but we might have to put additional mechanisms in place, for instance to support hard-to-reach communities.

Mary Fee

I will be quite specific. Did you speak to organisations, such as the National Autistic Society Scotland, that support families of children who can be quite challenging and difficult, and were any issues raised that there may be a higher prevalence of physical punishment in particular groups?

John Finnie

I have not personally spoken to that particular organisation, but, as an MSP, I am aware of the many issues that are associated with autism. We are liaising closely with children’s charities that have regard to a whole range of issues, including autism.

Mary Fee

Was there any discussion around the use of restraint? I accept that the bill is not the place to include provisions relating to restraint but, in the discussions that you had with children’s organisations, were there any concerns around the use of restraint?

John Finnie

It is an issue that comes up. You are right that the bill is not the vehicle for dealing with it, because we are talking invariably about institutions where different rules and regulations apply. There is no doubt that, however well meaning, the use of restraint can sometimes be considered as assault. Those issues have come up in our engagement.

Mary Fee

That is helpful; thank you.

Gail Ross

What steps should the Scottish Government take to promote awareness and education if the bill is passed?

John Finnie

There has been some discussion about the wide disparity between the Government’s figure and the figure that we came up with for the financial memorandum, which was an average of the cost of a range of campaigns that had taken place. It came out at £303,000, so we called it £300,000, to be fair. I think that it is entirely fair to consider what the minister says, but there is already an extensive network through which information is relayed to parents, and there is no reason why that could not be used.

Sorry, could you repeat your question?

Gail Ross

If the bill is passed, what steps should the Scottish Government take to promote it and educate parents that there are other methods of discipline and that they do not need to resort to smacking?

John Finnie

The Scottish Government’s position is that it does not support physical punishment as an effective means of disciplining children. The committee has heard from a number of witnesses that a campaign is not sufficient on its own but has to be backed up with a legislative framework, and it is important that there is awareness.

The implementation group that the minister touched on is key to this: it is about social work services and the police and the—hopefully minimal—role that the Crown would play. There is also the public campaign, because there needs to be public awareness. Some of the concerns that have been shared with us are about how a member of the public would react if they saw someone disciplining their child in public.

Gail Ross

Thank you. I see that you have been listening intently, because you have just answered about four of my follow-up questions.

Have you had any interaction with the implementation group, or is it separate from what you are doing?

John Finnie

I have not. I do not want to be in any way presumptive of the parliamentary process and it is important that there is a separation. We are aware of the group and of who is involved in it, and we would be very happy to engage with it, but it is for Parliament to decide whether it wishes to progress the legislation. Hopefully it will and, if it does, I would be very happy to formally engage with the group thereafter.

The Convener

That brings us to the end of the session. I thank the witnesses for their evidence.

Our next meeting will be on 4 April, when we will consider in private the evidence that we have heard at stage 1. The committee has already agreed to consider evidence in private, so we will move into private session.

10:10 Meeting continued in private until 10:55.  



 

 

 

 

 

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6 June 2019

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28 March 2019

Committee Findings

Equalities and Human Rights Committee Committee's Stage 1 report 

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

Read the Delegated Powers and Law Reform Committee Stage 1 report  by the Delegated Powers and Law Reform committee published on 24 October 2018.

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a debate on motion S5M-17342, in the name of John Finnie, on stage 1 of the Children (Equal Protection from Assault) (Scotland) Bill.

14:18  



John Finnie (Highlands and Islands) (Green)

I am delighted to be opening the debate on the general principles of the Children (Equal Protection from Assault) (Scotland) Bill. I give thanks to the convener and members of the Equalities and Human Rights Committee for their diligent and measured consideration of the bill, which was evident throughout all the evidence sessions, which I had the pleasure of attending.

I give special thanks to the committee’s clerking team for its work and to parliamentary staff and those outwith the Parliament who facilitated the committee’s many external evidence-taking visits. My thanks go also to the witnesses who gave evidence and everyone who contributed comments from the outset of the process. I welcome the 75 per cent support that my consultation drew and the backing of members from all parties in the Parliament.

I thank the many colleagues from all parties for their support and advice as my bill progressed from the start of the member’s bill process. I am grateful to the Scottish Government for its support of my bill, and to the Minister for Children and Young People, Maree Todd, for her support—I look forward to her contribution to the debate.

I extend big thanks to Nick Hawthorne of the Parliament’s non-Government bills unit and Catriona McCallum from the office of the solicitor to the Scottish Parliament for their work, and to my office manager, Steven Dehn, who has tirelessly led work on the bill in my office.

In June 2016, shortly after the Scottish Parliament election, I was approached by a coalition of children’s charities—Barnardo’s Scotland, NSPCC Scotland and Children 1st—and the Children and Young People’s Commissioner Scotland’s office to consider taking forward a member’s bill on the simple proposal that children should have the same legal protection from assault as adults do. I am immensely grateful for their on-going support and encouragement since then.

That was not my first foray into the topic. Towards the end of the previous parliamentary session, working with Barnardo’s, I had tried to squeeze an amendment on the issue into the Criminal Justice (Scotland) Act 2015, but the then convener of the Justice Committee ruled it outwith the scope of the bill. In hindsight, I am grateful for that decision, because it has allowed our Parliament and wider civic society an opportunity over the past few years to broaden discussions about the rights of our children and young people in Scotland. I know that many members from across the chamber are looking forward to supporting the Scottish Government in incorporating the United Nations Convention on the Rights of the Child into Scots law. That was recommendation 16 of the Equalities and Human Rights Committee’s report “Getting Rights Right: Human rights and the Scottish Parliament” in November 2018. I warmly welcome the committee’s decision.

The period of debate and reflection has strengthened my proposals and has highlighted a lack of awareness around the issue. On many occasions, I have been contacted by or have even encountered people who are surprised at the need for the bill, many believing that physical punishment of children had been prohibited a long time ago. Of course, it was not, and this important issue has not been looked at for almost 16 years, since the last weeks of the first parliamentary session in 2003. I hope that the few members who were there for that debate will perhaps agree that now is the time.

My intention in bringing forward the bill is to bring clarity to the law by removing the defence of reasonable chastisement, sometimes referred to as justifiable assault, and to send a clear message that the physical punishment of children is not acceptable. The growing body of international evidence shows that the physical punishment of children is harmful to their development and is not an effective means of discipline. Professor Sir Michael Marmot of University College London, in the foreword to the report “Equally Protected?”, published in 2015 by the charities I mentioned, stated unequivocally:

“The international evidence could not be any clearer – physical punishment has the potential to damage children and carries the risk of escalation into physical abuse.

It is now time for action. On the issue of physical punishment, Scotland is out of step with Europe and increasingly, the world. There is an urgent need for Scotland and the rest of the UK to comply with international human rights law and to prohibit all forms of physical punishment.”

Dr Anja Heilmann, also of University College London, a compelling witness to the Equalities and Human Rights Committee, told the committee that the evidence from the research

“shows very clearly that such punishment has the potential to harm children;”

and importantly

“that it is not effective as a parenting strategy, because it tends to increase problem behaviour and children’s socioemotional difficulties”.

That is important, as those problem behaviours in children do not disappear at the age of 16; they are stored up and damage our future society.

I want to quote from the briefing that members have received—I am grateful to all the organisations that have provided briefings for our debate, which, as ever, are extremely helpful. If only I could find the one that I am looking for now, that would be even more helpful. Dr Tamasin Knight of the Faculty of Public Health in Scotland said:

“Childhood physical punishment is linked to adult aggression and anti-social behaviour, including aggression and sexual violence within intimate partner relationships.”

Often in Scotland, we talk about zero tolerance of domestic abuse and violence, yet we allow the use of physical punishment for children. That sends a message to our children that hitting someone is a way of resolving a dispute or of showing that they do not like someone else’s behaviour. The bill is a vital step in ensuring that we see the necessary change in our culture, much as the smoking ban was a necessary legislative step in making Scotland a healthier place to live.

Opinion polls asked different questions and showed a mix of views, with some against the bill. However, the consultation on the specific proposal saw 75 per cent in favour.

The Equalities and Human Rights Committee also heard that, in none of the countries that now prohibit the physical punishment of children was public opinion with the legislative change at the time of the change. I firmly believe that, as with the smoking ban, we will see public opinion change over time. As Bruce Adamson, the Children and Young People’s Commissioner Scotland, told the committee:

“You need the legislation to deliver the culture change—we know that to be true. In that regard, this issue could be seen in the same way as seat belts in cars, drink driving and smoking in pubs. On such issues, you need to lead with the legislation in order to deliver the culture change.”—[Official Report, Equalities and Human Rights Committee, 7 March 2019; c 9.]

It is worth noting the opinions of young people in Scotland, which are perhaps more aligned with the aims of the bill. We often refer to the Scottish Youth Parliament in this Parliament because of the good work that it does. In its manifesto, “Lead the Way”, the SYP said that it consulted its members and received 72,744 responses from 12 to 25 year olds—an astonishing figure—of which 82 per cent agreed that all physical assault against children should be illegal.

Feedback from the 260 pupils who participated in the Equalities and Human Rights Committee meeting in a box, to gather evidence from children and young people, showed that 66 per cent of them supported the bill.

My bill aims to bring Scotland into line with what appears to be becoming the international standard in 54 countries. Sweden was the very first country in the world to adopt it in 1979, and Ireland adopted it in 2015. I thank Jillian van Turnhout, the former Irish senator, who secured equal protection for the children of the Irish republic, for her knowledge and support throughout this process. Nepal adopted the standard in 2018 and this year, the States of Jersey will also do so. That is the direction of travel.

I am sure that all parties will agree that we should work together to ensure that Scotland becomes the best country in the world for children to grow up in. I strongly believe that, if passed, my bill will play a vital part in making that aim come to pass. I am pleased to note the minister’s comments that the Scottish Government is working closely with relevant organisations on the next steps to ensure that, should it be passed, the bill is implemented satisfactorily.

I take this final opportunity to repeat my thanks to the committee for its support for the principles of the bill.

I move,

That the Parliament agrees to the general principles of the Children (Equal Protection from Assault) (Scotland) Bill.

14:27  



Ruth Maguire (Cunninghame South) (SNP)

I am proud to speak in this debate on behalf of the Equalities and Human Rights Committee. I give my heartfelt thanks to our diligent and professional clerking team, who are an example to us all.

The bill has dominated our work programme for the past few months. It is an important bill for children and families and could affect a huge number of people in Scotland. We knew that, as a committee, we needed to hear directly from those affected, so we set out an ambitious programme of engagement. We went to meet parents and grandparents in Pollokshields, Sighthill and Midlothian. We visited young people in Kirkcaldy at the YMCA juniors club. To reach the parents and children we could not get to, we developed a meeting in a box, so that community groups could send us their views. We received responses covering more than 300 individuals. Finally, we held an external meeting and a fact-finding day in Portree on Skye.

We could not have heard from all those people without the help of a number of teams from around the Parliament. On behalf of the committee, I thank our outreach team and the engagement unit for helping us to hear from so many voices. Our thanks also go to the members of staff—official report, media, web and social media—who travelled to Portree with us, particularly our security staff, who travelled through a snowstorm to support our meeting. We appreciated having them there.

Of course, our biggest thanks go to those who informed our scrutiny. More than 450 people, many of them individuals, took the time to write to us with their views. I know that many of them have concerns about the bill and its possible effect on family life. I say to them that the committee has heard their concerns. We met people who shared with us their fears about the bill, and we listened to their views. However, we also heard that many parents today do not smack their children and that Scottish society is moving that way in any event, but that we need legislation and support to help parents to find alternative approaches to discipline.

We also heard from children and young people, who told us their thoughts. Our particular thanks go to the children of Portree high school and bun-sgoil Ghàidhlig Phort Rìgh, who shared their opinions intelligently and freely. The preparation that they put in ahead of our visit was most impressive. Tapadh leibh airson fàilte cho cridheil a chur oirnn ann am Port Rìgh.

Since the extension of its remit in 2016, the committee has, wherever possible, taken a human rights-based approach to its work. That approach informs our work with children and young people. A human rights approach recognises that children have the right to participate, to be listened to and to have their views recognised and respected. That has been central to our work on the bill, which, after all, has children at its core.

The bill is about rights; it is about the right that children have to be free from violence in every setting, including the home. Home should be a place of safety and comfort where a child is nurtured. Therefore, it is extraordinary that the home is the one place where children are allowed to be hit—and it is only children who are allowed to be hit, not partners or pets.

All of us have the right to have our private and family life respected. Much of the evidence that we heard questioned whether there was a conflict between the right of a child to be free from violence and the right of parents to raise children as they believe best. We were reassured by the many witnesses who told us that the right to family life does not include a right to use physical punishment. The Scottish Human Rights Commission said that the European Court of Human Rights has determined several times that the right to family life is not interfered with by prohibiting physical punishment of a child. It went on to say that physical punishment clearly interferes with a child’s right to dignity.

Because of their physical and mental immaturity, children are entitled to and require more, not less, protection from violence than adults do, and we, as adults and parliamentarians, have a duty to uphold the rights of all vulnerable people.

On our visits and as part of our engagement, we met parents who told us that they had been smacked and were fine, or that they smacked their children with no ill effect. We heard that there is a marked difference between violence against children and a “loving smack”. Nevertheless, the evidence that we heard from experts and academics is that physical punishment has negative effects, which range from depression and mental health issues to an increased tendency on the part of those who are punished in that way to use violence themselves. As Jane Callaghan, professor of child wellbeing and protection at the University of Stirling, told us, it makes no difference whether those smacks were administered in love or in anger: the effect is the same.

In the course of our evidence taking, we heard many times that parents need to smack children in certain situations—the child might be reaching for something hot, or they might be about to run into the road—but Dr Louise Hill from the centre for excellence for looked-after children in Scotland put it best when she told us:

“as a parent of young children, if they run into traffic, my immediate response is to hold them. I get hold of my children and I keep them safe.”—[Official Report, Equalities and Human Rights Committee, 28 February 2019; c 34.]

That is what the bill attempts to do—it shows children and young people that, as a society and as a Parliament, we want to keep them safe. It puts their rights at the centre of our policy making, and it aims to support families in doing so.

The majority of the Equalities and Human Rights Committee supports the general principles of the Children (Equal Protection from Assault) (Scotland) Bill.

14:33  



The Minister for Children and Young People (Maree Todd)

I am pleased to speak for the Scottish Government on the Children (Equal Protection from Assault) (Scotland) Bill. As the Minister for Children and Young People, I see the bill as forming a key part of our work to ensure that Scotland is the best place in the world in which to grow up.

I thank John Finnie and his team for their hard work and dedication in progressing the bill. I also thank Ruth Maguire and the Equalities and Human Rights Committee for their careful consideration and their reasoned and balanced report.

The Scottish Government supports removal of the reasonable chastisement defence, and I welcome the committee’s support for the general principles of the bill, as set out in its report. There is a strong rationale for our shared position. The name of the defence—reasonable chastisement—is antiquated. At the heart of the defence is the concept that it can sometimes be reasonable to strike a child. That is completely at odds with our aim of Scotland being the best place in the world for children to grow up. We can contribute to that aim by providing children with the same legal protection from assault as adults have. That principle is at the heart of the bill.

Scotland can be at the forefront in the United Kingdom of providing such protection for children. Removal of the defence will help to deliver the best possible outcomes for children. It will assist them in growing up feeling loved, safe and respected so that they can realise their full potential. Removal of the defence is consistent with international treaties, with best practice in human rights and with the United Nations Convention on the Rights of the Child.

In addition, removal of the defence reflects the growing body of international evidence that shows that physical punishment of children is harmful and ineffective.

Liz Smith (Mid Scotland and Fife) (Con)

I am listening carefully to what the minister is saying. If we are listening, has the minister given any consideration to the strong views of the majority of parents in Scotland, who find that the bill will be unworkable and, probably, unenforceable?

Maree Todd

When parents were asked, more than 90 per cent of respondents said that they believe that children should have the same protection against assault as adults have.

Oliver Mundell (Dumfriesshire) (Con)

Can the minister set out how many people in Scotland thought it is appropriate to criminalise parents for such activities? Once the defence is removed, under what circumstances will parents be prosecuted?

Maree Todd

I will happily tackle that point in my summing up. We have been over that at committee: Oliver Mundell is regurgitating the same arguments.

By removing the current defence, the bill will provide helpful clarity to parents and carers about the law. The committee comments on that in paragraphs 121 to—

Oliver Mundell

If the minister wants to talk about clarity, is she able to give just one example in which a person would be criminalised for an action that would currently not be considered to be criminal because the defence exists?

Maree Todd

Let me be clear. The change in legislation does not create a new offence. The offence already exists: the offence is assault and there is currently a defence in law for it. The bill will remove the possibility of using that defence. When considering a particular case, the prosecutors will take into account all the things that they currently take into account. There might be an alternative defence—for example, self-defence. Prosecutors will take into account criminal intent and the age of the child: a number of things will be considered.

I cannot pre-empt particular situations and decide now who will be criminalised. I assure members that our intention is not to criminalise parents; our intention is to provide early support, using the GIRFEC—getting it right for every child—approach that we have been using for many years. We will continue to use it by recognising situations in which parents need support and by putting in that support—not by criminalising them.

Liz Smith

Will the minister give way?

Maree Todd

This is the last intervention that I will take.

The Deputy Presiding Officer

I can allow you a little extra time, minister.

Liz Smith

Can the minister explain with clarity, as I think is her role, why she believes that the current law is bad law?

Maree Todd

I make it absolutely clear that the Scottish Government thinks that it is not acceptable to use physical punishment on children. We believe that children should have the same protection in law as adults have.

By removing the current defence, the bill will provide helpful clarity to parents and carers about the law. The committee comments on that in paragraphs 121 to 128 of its report.

The minority statement in the report says at paragraph 281 that the committee has spent

“too little time listening to legal experts”,

but there is significant evidence from legal bodies. For example, the Law Society of Scotland’s supplementary written submission to the committee says:

“The Bill, as proposed, would introduce clarity of the law on what amounts to assault on children as far as children and adults are concerned. Assaults on children would not be justified. Children would therefore be afforded the same protection as currently available to adults. Whether prosecution for an assault on a child results would follow a decision by the Crown Office and Procurator Fiscal Service as to prosecution being appropriate in the public interest.”

The Law Society goes on to say that

“If the Bill is passed, there is a need to ensure that there is effective communication of the change to all involved. That has to seek effective ways to ensure that those groups representing ‘protected characteristics’ are fully considered.”

The committee also makes that point in its report. As drafted, section 2 of the bill provides that

“The Scottish Ministers must take such steps as they consider appropriate to promote public awareness and understanding about the effect of section 1.”

If the bill is enacted with section 2 forming part of it, we will of course comply with that section. The Scottish Government has formed an implementation group that is considering what will be required if the bill is enacted by Parliament. The group’s work includes what will need to be done on public awareness.

The Scottish Government will continue to provide support for parents and organisations. We are not telling parents how to parent: we will continue to provide support for them so that they can decide for themselves the best way to take care of their children. I am a mum of three teenagers: we all know that parenting is a tough job. We know that children can be challenging and wonderful—sometimes at exactly the same time. Our approach to parenting support will continue to reflect the day-to-day challenges that parents face. We will continue to provide practical and realistic advice that parents can turn to for help with those challenges.

Awareness raising has cost implications: the stage 1 report asks about the cost implications of the bill generally. The Scottish Government will consult members of our implementation group, following which we will write to the committee before stage 2. In paragraph 241 of the report, the committee noted

“the divergence on costs for public awareness raising.”

There are a variety of views on exactly what should be done on awareness raising. It would be possible to raise awareness by taking steps that have low cost implications, such as putting material on websites. I note the oral evidence to the committee on 21 March from Jillian van Turnhout that, in Ireland, the “allocated budget was zero”, so there was no awareness raising or campaigning in relation to the change in the law there. We have discussed awareness raising and campaign work with our partners on the implementation group and we will take account of the points that the committee made in its report.

The committee also made points on restraint. The Scottish Government agrees with the committee’s conclusion in paragraph 62 of the report, which states:

“We do not agree physical punishment is required to protect children from harm. We conclude that the Bill as drafted will not change a parent’s or carer’s ability to restrain a child to keep him or her from harm.”

We note the comment in paragraph 68, which states that

“Restraint in care settings is an area we believe requires much wider scrutiny, although we do not think that this Bill is the vehicle for that scrutiny.”

We agree that the bill is not the right vehicle for that, but we recognise the importance of the issue of restraint in care settings. Mary Fee raised the issue in committee, and I will be happy to meet her any time to discuss the matter further.

The Scottish Government supports removal of the defence of reasonable chastisement. We welcome the committee’s report. I believe that the bill is the right thing, as well as being a rights thing.

I ask members to support the general principles of the bill at stage 1 at decision time later today.

14:44  



Oliver Mundell (Dumfriesshire) (Con)

When I was elected in 2016, I did not imagine that I would be standing up in the chamber to oppose a bill that calls for equal protection of children from assault. The fundamental problem is that the bill will do more harm than good, and does not live up to its name. It is below the quality of legislation that the people of Scotland rightly expect from their Parliament. However well meaning it is, it represents an assault on family life.

Let me be clear: violence against children is wrong. On that point, I hope that we all agree. However, that is where I part company with members who speak enthusiastically in support of the proposal, because when it comes to the proportionality of subjecting good parents to criminalisation, and the suggestion that it is justified and reasonable for the state to intervene in family life when child welfare is not at risk, I cannot agree. To pass legislation to restrict parental rights and discretion would be bad enough, but to pass this particular bill, which lacks any threshold for involvement by the police or, indeed, for prosecution, is sheer madness.

John Finnie

Has Oliver Mundell read what the explanatory notes say about the public interest test? Does he understand that that is not changing? He was present when police and social work representatives joined together to say that, given their knowledge of their work, their view is that the bill will bring welcome clarity.

Oliver Mundell

I look forward to the Lord Advocate coming to the committee on 6 June to explain why, in its supplementary written evidence, the Crown Office and Procurator Fiscal Service recognised that there is a question involving situations in which mild force has been used by parents. I want to understand who will be responsible for taking the decision to prosecute patents, and under what circumstances that will happen.

I also wonder whether it will fall to individual police officers to decide whether to investigate families, and on what basis and when they will do so. I have not heard answers to any of those questions so far. That is why the bill represents bad law.

The bill will lead to more confusion, as was pointed out by Gary McAteer, who is a leading criminal lawyer from whom the committee did not have time to hear. The bill leaves us open to potential legal challenge. Other witnesses who spoke to the committee recognised that the proposal will create grey areas and problems, because the law of assault is quite wide.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Will the member take an intervention?

Oliver Mundell

I will not.

As legislators, our first duty must be to ensure that legislation is workable. My concern is this. I asked the Scottish Government’s legal team whether it thought that it would be helpful to provide clarity for parents—as we do in relation to affected parties when we choose to legislate to modernise and fundamentally alter other common-law provisions—by setting out in statute in black and white, for all to see, the tests that one would expect to be met if use of force by parents were to constitute an assault. The team responded by saying that if we did that, we would end up with something that is close to what we already have. Therefore, the question is this: what is the point of the bill, and why has the Government not, in more than a decade in power, sought to do anything to address this seemingly burning issue?

I have already asked the question, but I would be particularly grateful if the minister or the member in charge of the bill could set out the circumstances in which parents who currently rely on the existing defence would be prosecuted if the bill passes unamended.

John Finnie

I say again that Oliver Mundell is implying that there will be some new change of regime regarding investigation and prosecution. Absolutely nothing is changing in that regard, as he would know if he had troubled himself to read the explanatory notes that accompany the bill, and to listen to the evidence that was presented.

Oliver Mundell

That comment is, quite frankly, insulting. It makes a fundamental error on a point of law, which is that, in this country, where a defence exists, it is considered by the procurator fiscal in deciding whether to prosecute, so the likelihood of that defence succeeding makes a difference with regard to whether prosecutors decide to prosecute.

We have heard from legal experts, including Pamela Ferguson at the University of Dundee, and Michael Sheridan, who is one of the leading criminal law agents in Scotland, that the change, although it will not create a new criminal offence, will criminalise behaviour that is currently lawful. That means that parents—perhaps not great droves of them—will be prosecuted and subjected to police investigation in circumstances in which they currently would not be.

As I have already said, even the Crown Office and Procurator Fiscal Service which, it can charitably be said, has been reluctant to engage with the bill to date, recognises that challenges will arise when the physical contact is of an extremely minor or trivial nature. Indeed, it is almost impossible to know when the Crown Office or Lord Advocate would consider that the public interest test was met. It will be even more difficult to establish when matters are considered to be sufficiently serious for the police to investigate, and it is not at all clear who will make that decision.

As a parliamentarian, I have deep misgivings about passing legislation in an area as sensitive and controversial as this, and which will give such wide discretion to individual police officers and prosecutors.

When it comes to legislating in statute to remove centuries-old common-law provisions, there is a duty on Parliament to provide absolute clarity and to set out our intentions, and not simply to make big, bold claims and pass on to others the responsibility for taking difficult and legally complex decisions. The failure, in the bill, to set out that clarity is an abdication of responsibility. The bill as drafted is so imprecise that it will fail to improve on the current state of affairs.

What is more, there was confusion among witnesses who appeared before the committee. For clarity, the law of assault does not require a forceful act and there need not be substantial violence or injury; indeed, it can include a slap, tapping someone on the back—

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Will the member take an intervention?

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Will the member take an intervention?

The Deputy Presiding Officer

The member is in his final minute.

Oliver Mundell

Assault can include a gesture that places a person in a state of fear, even if there is no physical contact. That seems to be a very broad category of behaviour on which to focus with regard to parents. It seems to me to be odd that witnesses such as the Children and Young People’s Commissioner Scotland said that they could not foresee situations in which small physical interventions would end up in court, when the law of assault seems to suggest something different.

The problem with the whole bill is that we have not got into the legal detail. We spent far longer having an ideological debate about whether it is right or wrong to hit people and about whether it says in the Bible that people can hit their children. Those are not the right questions to ask. We have not investigated the bill properly.

It seems to be extremely odd to legislate to criminalise people for an action but then to hope that it does not happen.

14:52  



Mary Fee (West Scotland) (Lab)

I welcome the opportunity to participate in the stage 1 debate on the Children (Equal Protection from Assault) (Scotland) Bill. Let me say at the outset that just because legislation is centuries old, that does not mean that it is right. Parliamentarians and politicians have a duty and an obligation to be progressive and to lead change, and that is what the bill will do.

I am a member of the Equalities and Human Rights Committee, and I thank the individuals and organisations who submitted evidence on the bill. During our evidence sessions, including a meeting in Skye, the committee heard robust contributions from a range of experts. I will focus on our evidence sessions and what is in the report.

The bill seeks to give equal protection from assault by prohibiting the physical punishment of children by parents and caregivers. As we heard, the purpose of the bill is to abolish the defence of reasonable chastisement. Parents and others who care for children may currently use that defence if they are facing prosecution for assaulting a child.

Let me be clear. The bill is not about criminalising parents and carers. It is about giving children the same protection in the law that adults currently have.

Oliver Mundell

Can the member give a guarantee, then, that no parents will be prosecuted after the law changes?

Mary Fee

I think that the minister more than adequately covered that point when Oliver Mundell intervened during her speech.

I say to Oliver Mundell that I have struggled with people saying that we should not remove the defence of reasonable chastisement, when, if any one of us were walking down the road and saw a carer who was out with an adult who had a learning disability hit that person, I would hope that we would all be absolutely horrified. That adult has protection, and our children should have the same protection.

Liz Smith

I could not agree more with Mary Fee’s point, but does she recognise that there is a fundamental difference in law between the terms “assault” and “reasonable chastisement”?

Mary Fee

Any kind of assault is an assault. It cannot be justified by saying, “It was reasonable to hit.” If a person strikes another person, they are assaulting them.

The bill seeks to drive cultural change in Scotland to discourage the use of physical punishment. Evidence that we heard in committee demonstrated that physical punishment is harmful to children. We consistently heard that it is detrimental to the wellbeing of a child and is likely to lead to an increase in negative outcomes.

The evidence that we heard strongly showed that parents, children and family support services are best served by adopting methods that do not involve physical punishment. By removing that defence, we are protecting children from harm while also committing firmly to safeguarding children’s human rights. Let us be clear: this Parliament is a guarantor of human rights and, once again, we have an obligation to protect the human rights of children. Martin Canavan from Aberlour Child Care Trust argued:

“There naturally exists an imbalance of power in adult/child relationships, and as a result it is critical that children are provided with as much protection in law as possible.”—[Official Report, Equalities and Human Rights Committee, 7 March 2019; c 2]

The bill will help Scotland to meet part of its international human rights obligations under the UNCRC. Article 19 of the convention states that countries must take

“all appropriate legislative, administrative, social and educational measures to protect children from all forms of ... violence”

from any person who is caring for them. Scottish Labour is fully committed to the incorporation of the UNCRC into Scots law, and the bill is a step towards progressing that commitment.

Committee members heard a range of views both for and against the principles of the bill. Submissions from organisations that work with and support children fully support the aims of the bill. I understand the concerns that many parents will have regarding the bill; indeed, the majority of individuals who made submissions did not support the bill’s principles. Concerns included the suggestions that

“Banning smacking could overwhelm police and social workers”,

“Loving parents should not be criminalised”

and that the ban would

“turn thousands of parents into potential criminals overnight”.

Individuals stated that

“smacking is not child abuse”

and that

“There is a clear difference between child abuse and loving parental discipline”.

I understand also the concerns that were raised by parents who argued that the bill could lead to an increase in criminalisation for parents who smack their children. The bill does not make changes to policing or prosecution procedures or practices. The committee has been assured by Police Scotland that it would continue to take a view as to whether there was enough evidence to charge a person and the prosecution authorities would decide whether there was sufficient evidence to support a case.

International experience from countries that have already addressed the use of physical punishment suggests that prosecutions would not notably increase following implementation. Ireland unanimously repealed its common-law defence of “reasonable chastisement” in 2015. The committee took evidence from Jillian van Turnhout, the former Irish senator who introduced the amendment that led to the prohibition of corporal punishment in Ireland. She said that, since the implementation of the law, Ireland had

“not seen a dramatic increase in prosecution of parents”.—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 6.]

A key factor in the bill is its aim to facilitate a cultural change that will protect children from violence. The public education strategy will seek to work in the same way as that for the ban on smoking in public places and legislation requiring the use of seat belts—not to criminalise but to encourage positive change.

I will touch on restraint in care settings. I have seen first hand the use of restraint and the distressing impact that it can have on children and young people. We heard moving evidence from Amy-Beth Miah, a care-experienced young person who saw physical restraint as a violent and degrading experience. She said that the bill

“raises a grey area. When a child is removed from their family home to be placed in care, the state becomes the child’s corporate parent, and it is suddenly okay for the state to restrain the child and to act in an almost assault-like manner that breaches human rights.”—[Official Report, Equalities and Human Rights Committee, 28 February 2019; c 30.]

I welcome the Government’s commitment to look further at restraint in care and education settings. I welcome, too, the minister’s comments today, and I am happy to meet her to discuss restraint further.

By giving children equal protection from assault, we are protecting children and safeguarding their human rights. Through an effective public education strategy, the bill will aim not to criminalise but to create a positive culture change. Today is the first step in that journey. Scotland is not the only country that is on that journey. John Finnie spoke of other countries that have either introduced or are consulting on the introduction of similar legislation. I am sure that a number of amendments will be lodged at stage 2 not only to provide the clarity that many desire but to strengthen the bill. For those reasons, I urge all members to support John Finnie’s member’s bill.

15:00  



Ross Greer (West Scotland) (Green)

I am delighted to speak on behalf of the Scottish Greens in support of our colleague John Finnie’s bill to give children equal protection from assault. I know how hard John, his team and the wider equal protection campaign have worked and I am delighted to see the bill’s progress towards the stage 1 vote.

We widely recognise that children and young people in Scotland have rights, but as the evidence gathered during stage 1 has shown, our laws are not yet in a position adequately to protect those rights. In 1989, the United Nations proposed a treaty that would lay out the rights of children, which were acknowledged in the original Universal Declaration of Human Rights decades earlier. The United Nations Convention on the Rights of the Child was signed by the Government of the United Kingdom on 19 April 1990 and ratified by the UK Parliament in December the following year. The preamble to the convention affirms that, precisely because of their physical and mental immaturity, children need special safeguards, including appropriate legal protections. Children are afforded human rights just as any adult is, and we recognise that they require bespoke rights, just as other vulnerable groups do.

Article 19 of the UNCRC is unequivocal:

“States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence”.

Article 37 requires protection for children from torture or other cruel, inhuman or degrading treatment or punishment, which reflects the European convention on human rights and other international treaties. Other articles reinforce a child’s right to physical integrity and protection of their human dignity.

Repeatedly, the UN’s Committee on the Rights of the Child has highlighted the continued failings of the UK in this respect. It has reiterated that the law as it stands in the constituent parts of the UK is in breach of that international treaty. The age of criminal responsibility, which is currently under consideration by this Parliament, is another example of that. It is all well and good for those rights to be enshrined at the international level, but the UK, as a dualist system when it comes to international law, has to give domestic effect to those rights. For a long time, the UK has treated international human rights law as an afterthought—as something not really applicable to us—and presumed that we were in compliance anyway.

Over the past several years, things have become far worse. In many cases, the UK’s approach to human rights has turned from an afterthought to one of outright attack and hostility. Just last week, the UK Secretary of State for Work and Pensions launched a blistering and utterly unfounded attack on the UN special rapporteur on extreme poverty, Philip Alston, for his report on the UK. That comes after similar responses by the UK Government to reports by the UN Committee on the Rights of Persons with Disabilities, which found grave and systematic violations of disabled people’s rights going on right now in the UK.

Here in Scotland, we must—and can—be better. We must take seriously our international commitment to human rights. Today, we have an opportunity to press forward with that commitment. Since we signed the UN Convention on the Rights of the Child, we have failed to uphold our obligations. The last time that this Parliament considered the matter, it tinkered around the edges, hoping, I think, that that would satisfy the UN committee. Of course, it did not, because the UK, including Scotland, was not willing to take the necessary steps—steps that I firmly believe we are ready to take now.

Although the bill is a clear step towards recognising the rights of young people in Scotland, there is the broader issue of whether we are living up to our human rights obligations. Like other members, I was delighted when the Scottish Government announced that it would support and lead on incorporating the UNCRC fully into Scots law, and I welcome the consultation that the Government has published in the past week to do just that. The credit for that really needs to go to the Scottish Youth Parliament, whose campaigning for children’s and young people’s rights is an example for others across these islands and globally.

I hope that all parties can agree on the step, which will allow us to fulfil our ambition to make Scotland a human rights leader and the best country in the world for children to grow up in. The work that is being undertaken by the new human rights task force will be a vital part of that. I sincerely hope that the Government will seek to move forward without undue delay with the recommendations of the advisory group on human rights, which issued a report in December.

Human rights must have a strong domestic basis in Scotland so that we do not leave ourselves vulnerable to the disgraceful attacks on basic rights that have characterised the current Westminster Government. To do that, we must legislate on specific rights issues, as the Children (Equal Protection from Assault) (Scotland) Bill does, and seek to better incorporate international human rights law into Scots law.

I conclude by quoting Ian Campbell, who was the husband of Grace Campbell. As some members may be aware, Mrs Campbell led the court case more than a decade before I was born that led to the end of physical punishment in our schools. Explaining Grace’s philosophy, Mr Campbell said:

“You just don’t hit children. It’s that simple.”

It really is that simple. That is why, on a personal level, I have been deeply frustrated by some—a minority—who have used the faith that I share with them as an excuse to oppose the bill, and that is why I am very proud of the churches and other faith groups that have strongly supported the bill. I believe not just as a matter of political conviction but as a matter of deeply held personal faith that children have the same inalienable human rights that we all have.

Children and young people are rights holders in and of themselves. They have the right to be protected from assault. I urge all members to support the bill and tell the children of Scotland that they are unbeatable.

15:06  



Alex Cole-Hamilton (Edinburgh Western) (LD)

I offer my sincere thanks to John Finnie, and the full-throated support of Liberal Democrat members for his bill.

I am actually quite emotional. Members will know that, prior to being elected to the Parliament, I spent my entire career in children’s rights. Over two decades, I have fought alongside colleagues in Children 1st, Aberlour Child Care Trust, Barnardo’s and other organisations to end the physical punishment of children in this country. We have had setbacks and failures but, were it not for their grit and persistence, we would not be here today. It was my great privilege to address them at a rally outside the Parliament this morning.

During the campaign 10 years ago, I appeared on Radio Scotland to debate physical punishment with an organisation that was opposed to change. Immediately after the programme finished, I got a call from my dad, who said, “You know, I’m really proud of you for helping to lead this campaign. I only ever hit you once. You were two years old and your mum was in hospital having your sister. You wouldn’t eat your dinner and had a proper meltdown, so I slapped your legs. You turned around and you bit me in the face.” He never hit me or my siblings again.

I cannot remember a more deliberative process in the stage 1 proceedings of any bill that I have helped to scrutinise. We heard evidence from academics, parenting experts, religious groups and criminal justice stakeholders. I thank each of them and our committee’s parliamentary staff for the conduct of the process.

The overwhelming conclusion that the Parliament should arrive at from the evidence that we received at stage 1 is that we should join the ranks of the 54 countries that have extended to children in their societies the same protections that are enjoyed by adults. It is wholly wrong that children should be the only people in our society who are subject to assault without legal impediment.

There is an international imperative for us to pass the bill. The United Nations persistently points out that we are not meeting our commitments under either the United Nations Convention on the Rights of the Child or the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. We are among the last remaining countries in the Council of Europe not to have brought about the change.

To put it simply, if we are truly to become the best country in the world for children to grow up in, we will forever fail in reaching that aim for as long as we allow the physical punishment of our children. We will forever fail in our aim to eradicate domestic violence in the home while we legally or culturally sanction any kind of violence in our society, and we will fail in efforts to reduce violence in our streets as long as we allow parents to teach children that violence is an acceptable tool of sanction or anger. That is because, as we all know, children learn by watching adults.

Dr Lucy Reynolds from the Royal College of Paediatrics and Child Health offered our committee empirical evidence of that reality from Bandura’s Bobo doll experiment, which demonstrated that children who were shown a film of an adult picking up a toy mallet and whacking a clown doll in a room full of toys did likewise when they entered the room, whereas children who had not been shown the film did not do that. Her conclusion was:

“Children learn by mimicry, and if you hit children you are teaching them to expect either to dominate or to be dominated through physical violence.”

My father realised that the second that I bit him.

Crucially, John McKenzie from Police Scotland backed up that view when he told the committee that

“there appears to be a link between violence in the home and violence in wider society.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 9, 28.]

I am not blind to the controversy that the policy shift represents, but I have satisfied myself that none of the arguments that have been deployed against it holds water.

Murdo Fraser (Mid Scotland and Fife) (Con)

I am listening with great interest to Mr Cole-Hamilton. Does he accept that parents discipline their children in a number of ways? They might put very young children on a naughty step, exclude children from watching television or playing games or ground children. None of those things would be acceptable if done to an adult—in fact, they would amount to domestic abuse—so why do children differ from adults in that respect?

Alex Cole-Hamilton

Murdo Fraser trivialises the question if he equates something such as a YouTube ban to the physical assault of another human being. I do not accept that in any way.

We have heard from the Conservatives that the bill amounts to an assault on parents’ rights, but nowhere in international or domestic treaties is there a right for parents to hit their children. We heard the concerns of many who talked about legions of parents being marched through the courts for what they described as normal parenting behaviour, but they had no answer to the reality that countries such as New Zealand and Ireland, which are culturally comparable to us, have had virtually no additional prosecutions.

Oliver Mundell

Will the member take an intervention?

Alex Cole-Hamilton

I need to make progress.

Oliver Mundell

Will the member take an intervention on that point?

Alex Cole-Hamilton

Oliver Mundell did not take an intervention from me.

As with the smoking ban, such a change is designed not to criminalise but to effect a cultural change. I was gratified that Police Scotland confirmed that it would bring charges only if it were in the public interest to do so.

The most persistent argument against a change in the law that we came up against can be described as the idea of protective punishment. The argument, which was used on Radio Scotland this morning, is that, if a child runs out into traffic or moves to put their hand in a fire, a parent needs to retain the right to smack them so that they can learn not to do that again. I reassure people who make that argument that none of the 54 countries that have ended physical punishment of children has experienced an uptick in child deaths on the road or seen a spike in admissions to paediatric burns units.

That aside, the most compelling answer to that argument lies in the consideration of mental capacity. My friend the former Irish senator Jillian van Turnhout, who delivered similar legislation in Ireland, told our committee:

“The running-out-into-traffic argument was used in Ireland. Someone on the radio helpfully gave the example of her grandmother, who has Alzheimer’s. She said that she would not think to hit her grandmother if she ran out into traffic, so why would we choose to hit someone of similar cognitive ability but who was smaller? ... Our law was saying, basically, ‘You can hit someone as long as they are smaller than you”.—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 6.]

I agree with Jillian van Turnhout and every proponent of John Finnie’s bill, and I repeat, that it is wholly wrong that the smallest people in our society should be the only ones people can raise a lawful hand to. I support John Finnie’s bill.

15:13  



Angela Constance (Almond Valley) (SNP)

I confess that I find it pleasing that an ex-police officer has introduced the bill, because it tackles head on many of the lazy stereotypes about those who serve or have served in our justice system. Mr Finnie is to be commended because, although I support his bill unreservedly, it nonetheless raises an emotive subject that is difficult to discuss, because it taps right away into at least one of three things.

First, as has been mentioned, there are those who were smacked, skelped, hammered or leathered—members should insert whatever language they choose to use—and who say that that never harmed them. It is not my place to tell someone that their personal testimony is wrong, and we know that some folk are undoubtedly more resilient than others, but it is fair and accurate to point to a body of evidence that says that, overall, physical punishment is more harmful than helpful and that, at the end of the day, it does not work.

Secondly, we also encounter adults who will recount their childhood experience with pain. Although their experiences may well have been in keeping with the times in which they grew up, that pain is not always associated with the severity of the physical punishment, but how the punishment made them feel. Not that long ago, I visited a day centre for older people. One lady was giving forthright opinions, as is her right, about how some young folk need to be brought into line. That resulted in one of the gentlemen present making one of the most emotional pleas that I have ever heard in my life about why no child should ever be hit.

Thirdly, another area that we bump up against makes this issue difficult to discuss: parents. Parents of today, with all our worries, are anxious about doing the right thing and whether we will be judged by those who are meant to be supporting us in doing what, at the end of the day, is the most important job that we will ever have.

Liz Smith

Will the member take an intervention?

Angela Constance

No, I will decline. I will not take any interventions today because, as is the case with good parenting, it is important to remain calm.

I point to the fact that today’s parents are those least likely to smack or even to find doing so useful. In my experience, most parents do not want to smack their children. If they smack them, they do so because they are at the end of their rope and then instantly regret it. Yet, as citizens and as a society, we still find it hard to find the best and the simplest ways to support parents.

A number of years ago, I was at the shops. The scene that I am about to describe will be familiar to many members. A young woman was shouting at her wee one and yanking him up by his arm. It was really difficult to watch, because I thought that his arm might come out its socket. I had real anxiety about what I—the local MSP, a former social worker and, to boot, an education minister at the time—should do, if anything.

I did not want to ignore the distress of that mum or her wee one, but nor did I want to be intrusive or heavy handed. I started rummaging about my handbag, found a sweetie, sidled up to the mum and asked her if it would help if I gave the wee one that sweetie. That was just enough to interrupt the flow—the wee one glowered at me and then gobbled up the sweetie. All that I said to the mum was, “It’s no easy, is it?”

The young woman had not only a toddler but a newborn. She was absolutely knackered. I would not support the bill if I thought for one minute that it would increase the prospects of mums like that young woman being criminalised.

I accept that all countries and jurisdictions are different, but there is considerable comfort to be taken from the fact that 54 countries have travelled this road before us.

Oliver Mundell

Will the member take an intervention on that point?

Angela Constance

No, thank you.

The UK is one of only four European countries that has yet to travel this terrain, so we are not exactly blazing a trail. Although the bill is not a silver bullet, it will help us have a better discussion about parents hitting their kids and therefore a better response to supporting parents.

Let us remind ourselves about the detail of the need to be compliant with the UNCRC and the wholesale approach of article 19(1), which calls on Governments to

“take all appropriate legislative, administrative, social and educational measures to protect the child”.

Surely, the bill is an incremental extension of GIRFEC.

We should be helping to support the behaviour change that is already happening, and the law needs to be clearer, with children having the same protection under the law as adults. By removing the defence of justifiable assault or reasonable chastisement, we would not be changing prosecution or child protection practice—the committee heard oodles of evidence that demonstrated that. In my view, Mr Finnie’s bill does not just seek to do the right thing; he has also found the right way to do it.

15:20  



Annie Wells (Glasgow) (Con)

Throughout stage 1, I have been clear about my concerns about the Children (Equal Protection from Assault) (Scotland) Bill. None of us in the chamber would ever condone violence against a child, nor would the public. Yet we are debating a bill that, if passed, would see many loving parents criminalised. It is absolutely key to the debate that we make the distinction, which is recognised by the current law, between reasonable chastisement by parents and disproportionate punishment or assault.

Members may disagree with me on that point, but there is no way of escaping the fact that the bill would be practically unworkable. In 2002, the Justice Committee dismissed a similar proposal on the grounds that it would be unworkable and unenforceable and that there was no evidence to suggest that it would reduce harm to children.

This time round, the bill has been under the watch of the Equalities and Human Rights Committee, of which I am a member. As Oliver Mundell and I said in our minority statement, we are not convinced of parents’ support for the bill. We also believe that it would not provide legal clarity and that, as currently drafted, it might be open to future legal challenge. In our view, the bill would create a small, but not insignificant, grey area in which the use or perceived use of physical force to protect a child’s safety or for the purposes of restraint by parents might be misconstrued or reported to the police as assault. In practice, the police would, at the very least, have to instigate some form of investigation into the circumstances around extremely minor cases. Such situations would no doubt bring stress and angst to many loving and caring parents.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Will the member take an intervention?

Annie Wells

No. Like Angela Constance, I would prefer to keep the debate calm.

How frequently such referrals would be made to the procurator fiscal and whether they would lead to full-blown criminal trials is still unknown. The Crown Office and Procurator Fiscal Service stated to the committee that it is “quite possible” that reports to the police would rise. Police Scotland stated that the bill would increase reporting of crimes, with the potential cost and resource implications that that would bring. Many of the written submissions to the committee raised concerns that the bill would increase pressures on services such as the police, courts and social work.

Significantly, the Lord Advocate has not yet provided oral evidence to the committee. Given that, if the bill were to be passed, the Crown Office and Procurator Fiscal Service would have to make determinations on whether to criminalise parents, I believe that hearing such evidence is vital, and I am pleased that that will take place next week.

As we mark 20 years of devolution through the reinstatement of the Scottish Parliament, we should be thinking about how we can pass good, clear, uncomplicated legislation that must be workable—not legislation that, if it were to be passed, would potentially come under scrutiny for years to come.

I would like to raise a final point in relation to the Government’s right to interfere with family life. Polling has shown that parents in Scotland do not support the bill. In 2017, a YouGov survey found that 54 per cent of Scots said that smacking should not be banned, and that only 25 per cent of people supported a ban. A month after the bill was introduced, a Panelbase survey found that only 30 per cent of people supported a prohibition on smacking, and that more than half—53 per cent—believed that it should be allowed.

Alex Cole-Hamilton

Does the member recognise that other surveys have shown that parents support giving children equal protection from assault? Does she feel that the Parliament should always follow public opinion, whatever it says? Should we not sometimes try to lead it?

Annie Wells

What I am trying to say is that we need to pass good legislation that is workable and enforceable.

Over the past few months, many constituents have come to me with concerns about the risks that the bill would pose to loving and caring parents. They feel that, despite its best intentions, the bill would represent an intrusion into family life. One individual stated that it suggests that the Government is above parents and will—if the bill is passed—have decision-making power in the home. Another stated that parents know their child best, and only they know how best to approach the sometimes very difficult task of parenting. As with the named person legislation, the bill implies that parents do not know what is best for their children, and that they cannot be trusted to make the distinction between reasonable chastisement and assault. The reality is that legislation already—rightly—makes that distinction.

If meaningful work is to be done on eradicating violence against children, we should not divert the focus of police and prosecutors on to good and loving parents who choose—often only very occasionally—to use mild physical intervention to discipline their own children.

Maree Todd

Will the member take an intervention?

The Deputy Presiding Officer

The member is in her last minute.

Annie Wells

The bill represents a heavy-handed approach that—despite its best intentions—may in fact distract from our responsibility to protect children. The current law already protects children from violence, and it works well. The reality is that a majority of Scottish people are against the bill, as it would criminalise loving parents. We should listen to those concerns, avoid the temptation to virtue signal and focus on passing good legislation. That is why I will not support the bill at stage 1.

15:26  



Rona Mackay (Strathkelvin and Bearsden) (SNP)

I am very happy to speak in the debate and state at the outset that I am fully supportive of the bill. I thank John Finnie for introducing it.

The Scottish Government has always strived to promote and protect children’s rights, and the bill is an integral part of that. It would bring Scots law into line with the UN Convention on the Rights of the Child, which makes it clear that there should be an end to corporal punishment in all settings, including the home.

Presently, the United Kingdom is one of only four countries in the EU that have not legislated against the physical punishment of children in all settings. Scotland must lead the way here. Children do not have the same protection against assault that adults do, and that is simply shocking. Hitting children can never be justified. There is no such thing as justifiable assault—if the defence is not there for adults, why should it be there for children?

Alex Cole-Hamilton

The Conservatives have said several times during the debate that this law is unworkable. Does Rona Mackay agree that the defence of reasonable punishment or chastisement used to apply to men’s assault of their wives and servants, but that—happily—that defence was repealed some time ago?

Rona Mackay

I absolutely agree that the defence of reasonable punishment is totally archaic and should be removed entirely.

If someone hits their child, it is an admission that they—as an adult—have lost control. In addition, lashing out can only send a message to the child that hitting will bring the desired result. We know that children are affected by learned behaviour, and that hitting them will result in problems for them at the start of their lives. For example, they will lash out at nursery or school to get the result that they want, and such behaviour can carry on throughout their life.

The bill is not just about changing the law. As the committee’s stage 1 report stated, alongside a legislative solution, there needs to be

“a comprehensive public education and awareness campaign”.

Many years ago, I witnessed a distressing scene outside my local supermarket. A mother and her young son—who was probably aged about 12—were physically fighting with each other, kicking and slapping in equal measure. Shoppers looked down, embarrassed, and nobody intervened, including—I am ashamed to say—me. That incident has stayed in my mind for years after I witnessed it. If the correct legislation had been in place, I am certain that people would have stepped in to say that that behaviour was unacceptable and illegal. However, nobody wanted to intervene, believing that it was a private matter. I never want to see anything like that scene again, and that is just one example of why I am entirely supportive of the bill.

In my view, there is no reasonable argument against equal protection for children. As we have heard, an excellent briefing from Children 1st, Barnardo’s and NSPCC Scotland points out that former Irish senator Jillian van Turnhout—who was instrumental in legislation change in the Republic of Ireland—states that social workers say that they now have the ability to send a clear message to parents. They can say to them: “You’re not allowed to hit your children, so let’s talk about what you can do. Let’s talk about positive parenting”.

In Ireland, there is an overwhelmingly positive message from civil society organisations and state agencies regarding the clarity that the change in law has brought. I believe that civil society in Scotland will experience that, too. The bill, and raising public awareness of it, will help to create the culture change that has been seen in other countries, and which has been seen in Scotland around public health issues such as smoking and seat belts. It will clearly show that Scotland does not tolerate violence against anybody, particularly the smallest, most vulnerable people in our society: children.

I believe that legislators have a duty to act when it becomes clear that the law is out of step and out of date with what the evidence shows. The evidence shows that physical punishment does not work and can be harmful, and children and their families deserve a law that reflects that. The bill is about changing attitudes to the physical punishment of children in Scotland. It is not about making prosecutions easier or criminalising people, but about preventing others from carrying out such actions in the first place, because we know that they are harmful.

My grandchildren cannot believe that when I was at school, children were assaulted by the belt as a punishment. As they grow up, I want them to know that it was this Government in Scotland that gave them equal protection against all forms of violence. It is our duty to do so for future generations.

I am delighted to support the general principles of the Children (Equal Protection from Assault) (Scotland) Bill.

15:30  



Rhoda Grant (Highlands and Islands) (Lab)

I am sure that there are few parents who could put their hands on their hearts and say that they have never smacked a child. Not only were people of my generation used to being smacked as children; at school, we ran the gauntlet of the belt, which—I am pleased to say—is long gone.

It is clear that using different forms of non-physical chastisement works better and takes the tension out of a situation. For example, a time out removes the emotion, but lets the child know that they have done wrong and have forfeited their freedom as a result.

As I said, in my youth, physical punishment was widespread at school and at home. Most of it was carried out proportionately, but some was not, and it was difficult to see where the line was drawn. When physical punishment was banned in schools, we heard the same arguments that we are hearing today. Children went home with bruised and bloodied wrists—how on earth was that right? I do not think that anybody would go back to those days.

I remember walking down the street ahead of some adults and children a number of years ago. One little boy was whingeing away—yes, he was annoying, but he was hardly bad. He was warned to “shut up” a couple of times, then I heard him being physically punished. I was ahead and could only hear it. I could hear the smacks raining down on him and I could hear his screams of pain—the more he cried, the more he was smacked. Alongside that came the verbal assault about how terrible a child he was. There was no love whatsoever in that punishment and the horror of it remains with me to this day. I am clear that it was not reasonable chastisement, but how could I prove that? Should I have intervened? To my shame, I did not. I went home, feeling sick to my stomach. I did not see it; I heard it. I wonder what became of that child. He will be an adult now, but his start in life left me with little hope for his future.

We have all witnessed a child doing something naughty, such as running into the road without looking. We have seen the parent grab an arm and pull the child back and heard the parent shout at them, telling them how dangerous it is. No one questions the reaction to a fright—frankly, we would do the same if an adult ran into the road, and no one would consider it assault.

Prosecutions need to be in the public interest and there has to be intent. We hear from other countries that removing the protection of reasonable chastisement has not led to an increase in prosecution, but it does remove a defence against abuse.

We all know the difference between assault and intervention to promote safety. To say that parents will be criminalised is, I believe, nonsense. That said, I am sure that there will be a few spurious reports, especially from parents who are at war. However, we have checks and balances in our justice system. There is a process to go through, including a police investigation, corroboration and the oversight of prosecutors, which provides safeguards against spurious prosecutions.

Liam Kerr (North East Scotland) (Con)

Rhoda Grant talks about people making spurious reports. Presumably, on her analysis, perfectly good parents who could be subjected to the criminal justice system would be seen as collateral damage. What is her view on that?

Rhoda Grant

That is not a reason to continue to allow the assault of a child. There will always be spurious allegations, but we need to deal with them and make sure that anyone who makes them is charged with wasting police time, apart from anything else. That does not mean that we should not legislate to protect children.

There are some who say that the change would interfere with family life. However, the law as it stands currently interferes in family life by allowing a different bar with regard to chastisement by a parent compared with any other adult. To follow that argument through to its conclusion, it could be argued that taking action against domestic abuse is also interfering in family life. For most of us, the family is the safest place to be: surrounded by loved ones who have our best interests at heart. That is not the case for all. We know child abuse happens. How many others like me did not interfere because the law allows reasonable chastisement? How does my reasonableness compare with someone else’s? The law needs to protect young and old alike.

Oliver Mundell

The member raises an important point because people have different ideas about what is reasonable and what is severe enough to merit intervention from the police. Does the member agree that it would be better if the bill set out in detail tests that make it clear and obvious what is right and what is wrong?

Rhoda Grant

We all know the difference between assault and pulling somebody back from the road. We do not walk down the street wondering whether someone is being assaulted. If we see someone being assaulted, we know it, and it is the same with children.

Oliver Mundell

Will the member give way on that point?

Rhoda Grant

I want to make some progress. I answered the member’s earlier intervention.

It is clear that we should not have a different bar for children from that which we have for adults, because we recognise what assault is. If we start trying to categorise that in the law, we will create loopholes, which would be unhelpful.

I understand that there are differing views about the issue. Who has not had a moment of fright with a child and grabbed them and smacked them? That does not mean that it is right. It takes time and consistency to make time out and other alternatives work, and we all know that parents face competing demands. However, we are the adults. The parents are the adults, and we need to educate society on good parenting skills.

We need to learn patience with children. I will finish with this small point. How many of us have seen a child having a meltdown or a baby crying and seen people tutting at the parent for not controlling that child? On such occasions, I have also watched as other adults stepped in and helped out. We all need to be more tolerant and learn to step in and help rather than criticise.

15:37  



Gail Ross (Caithness, Sutherland and Ross) (SNP)

I agree with what Rhoda Grant said in the last paragraph of her speech.

I thank the member in charge of the bill, John Finnie, for bringing it forward, and his staff for all their hard work.

It is worth restating that article 19 of the UN Convention on the Rights of the Child says:

“States Parties shall take all appropriate 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. We are incorporating the UNCRC into Scots law in the current parliamentary session. We introduced getting it right for every child; we have one of the most sophisticated, welfare-based systems of dealing with children who offend; we have a baby box; and we are becoming trauma informed. However, if a parent or a carer is charged with hitting a child, they can still fall back on a legal defence of “reasonable chastisement”.

As we have heard, the bill does not create a new offence; it removes a defence. It also aims to foster a change in societal attitudes with alternative methods of positive parenting that do not include punishing children physically. As John Finnie and Rona Mackay said, parallels have been drawn with other culture changes that began with legislation that might not have been popular at the start, such as the wearing of seat belts and the ban on smoking indoors in public places.

In evidence sessions at the Equalities and Human Rights Committee, the majority of witnesses agreed that the evidence in favour of removing the defence is overwhelming and the bill must become law if we are to see a change. I thank all the witnesses who gave evidence. I thank especially the clerks, who did a fantastic job in sometimes extremely challenging circumstances.

Despite what has been written in the minority statement, the convener and the clerks made every effort to get different views on whether the principles of the bill could be supported. We heard from some witnesses that smacking, used in the context of a loving family setting and administered only in extreme circumstances, perhaps to communicate a message of safety, could and should still be used. However, the overwhelming volume of evidence explained why even what might constitute mild or reasonable smacking should not be used. NHS Tayside told the committee that physical punishment of children is associated with

“a range of adverse outcomes including emotional and behavioural problems, anxiety and depression, physical abuse and anti-social behaviour and violence in childhood and adulthood. Additionally, the evidence is that physical punishment doesn’t work—it is ineffective in achieving moral internalisation of the values and behaviours the discipline is trying to encourage.”

Why do parents smack? Is it just a momentary lapse of control, or is it used systematically by parents to communicate? Well, it can be both. I pressed the point in two of our evidence sessions, in order to understand better why smacking is used. I was told by one witness that

“smacking is communicating with a child through ‘light pain’”

and by another that it was, indeed, a “slightly painful thing”.

Should children learn through fear of pain? No, I do not think that they should. Children should learn through love and understanding.

Liam Kerr

The member knows that I have a lot of sympathy for what she says, but is the logical extension of that not that it is better to educate parents not to go down that route than to risk criminalising them?

Gail Ross

I am happy that Liam Kerr has raised that point, because I will address it later in my speech.

There were a number of concerns about criminalising parents and additional burdens being placed on resources and existing staff. We heard evidence that other countries, such as Ireland, that have introduced similar legislation have seen little or no increase in the prosecution of parents. Nevertheless, we envisage that there may be an increase in reporting and that resources will have to be put in place to deal with that. That will include more positive parenting advice and help for families for whom English is not a first language and who may come from countries where corporal punishment is used more widely. As has been mentioned, should the bill become law, there will also have to be an awareness-raising campaign and guidance for professionals and organisations.

Angela Constance, in her brilliant speech, talked about parenting not being easy. All the parents in the chamber will agree with that, but a person does not need to be a parent to know that this is the right thing to do. We need to be very careful that the message does not make children who have been smacked think that they have been damaged in any way. We must also ensure that parents who currently use or have used smacking in the past are not made to feel guilty or that they have done something wrong. This is not an exercise in guilt; it is about education and understanding.

The bill sees the rights of children put on a par with those of adults. It encourages a culture change. It has been argued that, in this case, a change in culture cannot happen without legislation—that deals with Liam Kerr’s point. If we were to undertake a public awareness-raising campaign that said there is no justification for hitting a child but there was still a justification for it in our legal system, that would send out completely the wrong message to parents.

I leave members with the words of Jillian Van Turnhout, a former Irish senator and a committee witness:

“We know that when a child is hit, they immediately forget everything that happened beforehand, because the person whom they love and cherish has hit them. There is no connection to what the child did.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 7.]

The law is clear that a person should not raise their hand to another adult; it needs to be clear that they should not raise their hand to a child either. The bill brings that clarity.

15:44  



Gordon Lindhurst (Lothian) (Con)

It gives me no pleasure to speak in today’s debate, but someone needs to speak up for Scotland’s children, parents and families. Our current criminal law rightly prohibits parents from assaulting their children, and that is the way it should be. I think that that is a unanimously agreed proposition—at least, I would hope that it is. We already have the right laws and procedures in place to guarantee that. The misleadingly named Children (Equal Protection from Assault) (Scotland) Bill is not about protecting, supporting and nurturing our children and families; it is a misguided attempt to tell parents how to raise their own children under threat of being treated as criminals and facing the full force of the state if they do not.

John Finnie

Will the member take an intervention?

Gordon Lindhurst

I will not take one at this stage, as I want to address the imbalance that has existed in the debate before this place.

However well meaning some supporters of the bill may be, they overlook that crucial point.

Families are the bedrock of any stable and civilised society in which the best interests of children can be protected. The state cannot pretend to replace the family, and one that does so will fail.

Alex Cole-Hamilton

Will the member take an intervention?

Gordon Lindhurst

Not at this moment.

That point was clearly made by the UK Supreme Court in the named persons case.

In his recent Reith lectures, on BBC Radio 4, the recently retired justice of the UK Supreme Court Jonathan Sumption QC made a key point about the problem with a lot of current law making. He said:

“We are afraid to let people be guided by their own moral judgements in case they arrive at judgements which we do not agree with.”

That is what we are dealing with here, and such bad law upsets good families.

Consideration of the bill before us has been a far cry from the informed, careful and considered approach that was taken with the current law, which was clarified in 2003. Supporters of the bill have had the free run of proceedings before the Parliament and in committee. In spite of an overwhelming response to the committee from members of the public who were against the bill, it chose instead to hear overwhelmingly in its public proceedings from supporters of the bill. Nor did it hear in those public sessions from many who made submissions against the bill, including, crucially, individuals in the front line who deal with the courts and child protection.

John Finnie

Will the member take an intervention specifically on that point?

Gordon Lindhurst

Not at this stage.

Those from whom the committee did not hear included experts in the practice in their field and in the workings of our current law. Surely the Lord Advocate, as the head of Scotland’s prosecution service, should have appeared before the committee to answer questions on the bill, but he did not. We are told that he has been invited to give evidence later. In those circumstances, it is entirely unsatisfactory for Parliament to be asked to approve the bill.

What of the unsatisfactorily unresolved issue of the alteration of the committee minutes, which was rightly raised by my colleague Oliver Mundell in his point of order on 15 May, and the provision of parliamentary and other publicly funded resources to support and promote the bill on all sides, of which there was a lack of availability to those who wished to scrutinise the bill? Lack of openness and transparency, an unwillingness to listen and a failure to respond to concerns that have been raised are issues that simply will not go away.

My fear is that the committee and the Parliament will receive a simple fail from the public on this one if the situation is not addressed now, because the message that is being sent out 20 years after the Parliament began is that it is neither the people’s Parliament nor a listening Parliament.

We are being asked to approve a bill and a proposition that has not changed one iota since conception to coming to this point in spite of the information that the Scottish Parliament information centre has provided that points to crucial differences in other legal systems. The bill does not propose what is law in New Zealand or in other countries that are relied on. Those differences should have been the subject of full consideration and research. Such research has not been carried out, in spite of my request for it, and the unanimous public evidence from supporters of the bill to the committee that parents should not be criminalised by fining them or imprisoning them—which is what the bill provides for—has, equally, been ignored. If the bill needed amendment at the outset, it obviously does now.

Elected politicians should not assume that they have some sort of divine right to tell others what to do, so I will conclude by quoting the words of a mother and a constituent of mine who wrote to me last week:

“The State has ever made an awful parent. I am tired, of special interest groups, selective consultations, liberal virtue-signalling and media bias trumping plain decency and common sense. I confess, my faith in politicians to act in line with democracy is at an all-time low. Could you restore it, please—speak, act and vote against John Finnie’s Children (Equal Protection from Assault) (Scotland) Bill?”

That is what I shall do.

15:50  



Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

I congratulate John Finnie on his commitment to his member’s bill. As someone who has had a few member’s bills in this Parliament, I am all too aware of the time and effort that goes into the process.

Like everyone here, I understand but do not support someone smacking his or her children for wrongdoing. I also find it patronising to be told or for it to be alluded to—not by anyone in here—that people of a certain vintage do not want to ban smacking because they hold the view that “I was smacked and it did me no harm.” I am not in that category. Times change—and rightly so. Ross Greer reminded us that the tawse was quite rightly banned decades ago. My sons have never smacked or used physical punishment on their children, and neither do I on my grandchildren—what granny does?

I would be hard pressed to recall any time in recent years when I have seen a parent physically punishing a child in public. I have seen parents shouting and even screaming at their children in the supermarket, and, as a parent, I understand why that can happen, although that can be just as harmful. However, I have not seen parents hitting their children. Therefore, the first question is: do we need this legislation? Policies that have changed our views on disciplining and parenting, the provision of free nursery places and education and social mores have meant that, in public places, smacking is, to all intents and purposes, gone for good—or, at worst, takes place out of sight. Indeed, rights can be enshrined in common law and in case law, not only in statute.

The second question is: if this bill proceeds as it stands, what will the impact be in private places such as the family home? Will the parent who relied on so-called justifiable assault—a most unfortunate term—think twice? Will parents postpone punishment with the words, “Wait till I get you home”? If the bill is breached, who will report it? What will the evidence be? Will every instance require a police visit and a report? Corroboration would be required for any proposed prosecution.

Neil Hunter of the Scottish Children’s Reporter Administration stated that

“the existence of a spectrum of violence in children’s lives—particularly in the household—has a very adverse impact on their wellbeing and outcomes.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 29.]

I could not agree more.

John Finnie

I note that the SCRA supports the bill.

Does the member acknowledge that much of what she has said in relation to assault on children in the house could apply to domestic violence, which is now rightly addressed through a different approach by not only the public but the statutory agencies?

Christine Grahame

I will address the point made by the children’s reporter. Neil Hunter said that it is “particularly in the household” that violence has an adverse impact, and my concern is that, although the proposed legislation may do something in the context of public places, I cannot see how it could successfully operate in the home, where it would be difficult to police and difficult to prosecute.

The stage 1 report remarks on the small number of prosecutions that followed the introduction of the Criminal Justice (Scotland) Act 2003, which prohibited shaking and the use of an implement. However, the small number of prosecutions, which is referred to in the report, does not necessarily establish that the 2003 act changed behaviour—it may have, but we do not know. We are not told in the report how many police investigations there were, how many reports there were, how many of those cases went to the Crown and how many cases the Crown did not proceed with through lack of evidence or because it was not in the public interest to do so.

We need detailed evidence. Did parents stop shaking or hitting children—in public, at least—because of public pressure or because of the 2003 act? How many members of the public even know of the 2003 act and what it does? We know that children are still hit, shaken, beaten and smacked in private. We find out about that when cases end up with social work or when tragedies make front-page headlines. Will the bill change that? I do not know, but it seems from the social work evidence—at least as I read it—that the bill will not impact on the social work case load.

Then there is the necessity for clarity in the law. The bill states that the rule that

“the physical punishment of a child in the exercise of a parental right or a right derived from having charge or care of the child is justifiable and is therefore not an assault, ceases to have effect.”

According to that definition, such physical punishment would therefore be an assault. Whether the person would be prosecuted is another matter, but it would still be an assault. As I understand it, the definition of assault in Scots law is that it is a physical attack on another, or the threat of such, that is intended to cause bodily injury or that puts the victim in a state of fear that he or she may be about to suffer bodily injury. To me, those two definitions do not sit side by side.

Let us unpick this. If a child was slapped across the arm for some wrongdoing, that would fit with the member’s definition of an assault, but would we call it an attack? By definition, it would be an assault, so some inquiry would be required, although, at the end of the day, the Crown might decide that it was not in the public interest to prosecute. I agree with other members that it is a shame that evidence was not heard from the Lord Advocate before the stage 1 report was produced. That evidence is crucial, as the Lord Advocate is the head of prosecutions and considers what is in the public interest in Scotland.

Sticking to public places, what is a parent to believe it is appropriate to do? A slap on the hand for reaching for the forbidden sweets at the check-out would certainly be an assault as defined by the bill. Although I understand the member’s entirely worthy motives, there are too many unanswered questions for me to support the bill as it stands. An assault, like an elephant, is better defined visually. We know an elephant when we see one, and we should certainly know an assault when we see one.

Statute or legislation can be a heavy-handed—forgive the metaphor—way of delivering social change. As the bill stands, it is not fit for purpose and has a whole host of possible unintended consequences. As Angela Constance rightly said, it will be good if the bill leads to a better discussion on parenting, but bills need to be robust and tested before they are enacted and become statute. We need more evidence—at least, I need it before I will support the bill. Accordingly, I intend to abstain at decision time. Good intentions must be matched with good legislation.

15:57  



Claire Baker (Mid Scotland and Fife) (Lab)

I thank the committee for the work that it has done in recent months to produce the stage 1 report. The committee has attempted to be thorough and to engage in the debate that surrounds John Finnie’s member’s bill. I also thank the member and his team for their work.

I recognise that the Conservative members of the committee have taken a minority position on the bill—one that questions some of the committee’s work. However, as all of us who are on committees will recognise, it can be challenging to satisfy all views on what are sometimes contentious issues. As an MSP who has scrutinised the Census (Amendment) (Scotland) Bill, I have recent experience of that.

Some members will put the case that has been articulated during the stage 1 evidence: that the bill will negate the rights of parents and the right to family life, that it demonstrates the interference of the state, and that it will deny the right to religious freedoms. However, I do not find those arguments to be convincing reasons for stopping the bill’s progress. I am convinced by the argument that children should receive, under the law, the same protection as adults. I agree with that general principle and support the bill’s proceeding on that basis.

Although John Finnie introduced the bill in 2018, this is not the first time that the issue has been discussed in Parliament. My former colleague Scott Barrie, who was the first MSP for Dunfermline, argued the case in the early days of the Parliament and received quite a challenging time from the media. The then Scottish Executive introduced a consultation on the issue before going on to introduce legislative changes.

We can look back on that previous debate and reflect on why support was not broad enough at that time. The law was changed to give parents a justification of reasonable chastisement in certain circumstances. We did not then have a commitment to introducing the United Nations Convention on the Rights of the Child. The voices of children and young people were not heard or listened to as they are now, and Parliament in its early days was not free of controversy and questions about its relevance. All those factors contributed to the limited nature of the changes that were made.

The bill represents unfinished business for the Scottish Parliament. As a serious modern legislature that is committed to meeting its international human rights obligations and to not being in breach of the UNCRC, we need to remove the defence of reasonable chastisement.

We have been on a path that has dramatically changed our society’s attitude to children and young people. We no longer have corporal punishment in schools, and we recognise children’s right to protection. Furthermore, physical assault as a means of teaching or controlling children is increasingly unacceptable, and it is now recognised as being counterproductive.

As a society, we still have issues with violence, and although we can point to factors such as alcohol as aggravators in that regard, we should recognise that a society that views physical chastisement of children as acceptable needs to reflect on what terms that sets for adult and future parental relationships. Research into the effectiveness of physical punishment as a parenting tool finds that it is not effective in achieving parental goals. There is little evidence to suggest that it improves children’s behaviour in the long term, and it can exacerbate problem behaviour.

Although the committee heard evidence from groups representing adults, it also took considerable evidence from children and young people, including Kirkcaldy YMCA Junior Football Club.

A few years ago, I watched an episode of “Supernanny” that featured a family with loving parents who used smacking as a means of exerting parental authority. The dad, who did the smacking, was not in a rage when he did it—it was a controlled reaction to bad behaviour—and the parents did not think that it caused any harm. However, the programme makers conducted a secret interview with the children in which the children expressed their love for their parents and said how happy they were, but also said that it upset them when they were smacked, and that it spoiled their relationship with their father. I remember that, when the parents saw the interview, they were absolutely horrified that their behaviour was having that impact on their children. They could not conceive that what they thought was light parental control through smacking was causing their children that level of concern. It changed the behaviour of those parents.

Being a parent can, at times, be difficult. Children of all ages can be frustrating and parents wish to protect them from harm. However, I feel that the suggested examples of prosecutions arising from children getting a tap on the wrist after running into roads or reaching out to fires are trivial. There is no evidence to support the idea that that is what is happening in countries that have enacted similar legislation.

When Dr Louise Hill spoke to the committee, she said:

“The international research indicates that there is no increase in prosecutions as a result of a change in legislation. There is, however ... a decrease in the use of physical punishment and a decrease in physical abuse.”

She also said:

“we think that there could be a reduction in prosecutions as a result of the bill, because of the culture change that will happen.”—[Official Report, Equalities and Human Rights Committee, 28 February 2019; c 38-9.]

At present, the UK is one of only four countries in the European Union that has not legislated against physical punishment of children in all settings. There is no evidence to support concerns that loving parents will be criminalised, or that protection services will be overwhelmed. I respect those who have raised concerns about those issues, and they must be addressed in future stages of the bill or in accompanying guidance, but I believe that the bill is workable and can be implemented in a way that is understood by parents, the police and courts, and that it can be enforced in a way that is sensible and proportionate.

During stage 1, no one argued in favour of hurting children and no one supported violence against children. However, views differed on whether smacking is a violent act. Although the bill received significant support during consultation, there is still a challenge to address in public polling. There is support for smacking, but there is also strong support for protecting children, and some of us see that as a contradiction.

Smacking is not just about the degree of violence; it is about preferring a physical reaction over communication, and exerting power in a way that can be humiliating and hurtful. Adults who defend smacking because it did them no harm still remember that they were smacked, but they rarely talk about the good that it did them. The bill will extend to children the same legal protection as exists for adults. I am pleased to support its general principles.

16:03  



James Dornan (Glasgow Cathcart) (SNP)

As others have done, I pay tribute to John Finnie for his tireless work and for his commitment to bringing the bill into being. His bill might not have unanimous backing among members of the Scottish Parliament or the public, but it is a vital step towards creating a fairer and more equal society for everyone in Scotland, at the very heart of which should be children and young people.

A few constituents on both sides of the debate have visited my surgeries to discuss the issue. Although I do not sit on the Equalities and Human Rights Committee, I have, as a father and grandfather, been very interested in the formation and progress of the bill over the past months. It has been worth it, for my part, to try to understand what young people think about being smacked, whether as a form of discipline or—as some parents suggest—as a form of guidance.

The Scottish Youth Parliament is an institution of which we should be immensely proud. Before I make my point, I want to thank publicly the two MSYPs in my constituency, Ellie Craig and Zanib Ahmad, for their hard work and commitment to our community. Of course, I also thank all the other MSYPs whose contributions often help to mould legislation and debates such as today’s.

As John Finnie said, the Scottish Youth Parliament asked about physical punishment in a consultation in 2016, to which it received more than 72,000 responses from young people, 82 per cent of whom agreed that physical assault on children should be illegal.

It is pretty clear from research and anecdotal evidence that children find smacking hurtful and upsetting. An adult lifting his or her hand to a young child is a terribly traumatic experience that has no long-term positive effect.

I grew up in a home in which both parents were pretty strict and I was always well aware of where the line was. My father was able to command my respect and lifted his hand to me only twice. I can assure members that I completely understand why he felt the need to do that at the time.

The only time when I physically punished one of my kids was when we were crossing the road. He slipped out of my hand and stepped back into the road. I managed to grab him and pull him back to me. I then skelped his bahookie while hugging him at the same time. Talk about mixed messages.

The reality of course is that I did not skelp my son to teach him a lesson but out of instinct, based on my fear of what could have happened. He would have got much more from my show of affection and concern than he ever got from the skelp. That was the case on the millions of occasions when my dad explained something to me or comforted and cared for me, as opposed to the two occasions that I mentioned, which did absolutely nothing for or to me. All that they did was embarrass my dad, just as I was embarrassed and ashamed by my behaviour after the wee yin had run into the road.

A few people have protested about the bill by saying things like, “My parents hit me when I was younger and it never caused me any harm.” However, my generation can say that about many things in our youth. I rode my bike without a helmet: it was just luck that I never had an accident. We sat in cars with our children on our knees and prayed that there would not be an accident. I could keep on listing from my youth safety issues that never harmed me. The fact is that the behaviour could have harmed me—as, sadly, it harmed many people.

Legislation such as the bill is an important step in trying to alter our behaviour. That is why the Government and Parliament must take progressive steps to protect our children and encourage parents.

As I said, some constituents have come to my surgeries to express concern that their rights as parents and grandparents are being removed. I have no doubt that those constituents have at heart the best interests of the children in their families, but sometimes we have to acknowledge that our current ways are just not working.

If a member was standing next to an adult who had his headphones on, and lack of concentration led the adult to step in front of moving traffic, the member would pull him back, but definitely would not hit him. Why? It is because we know that that would be assault. What is the difference between that and me hitting my son?

As the law stands, whenever we choose to discipline children by corporal methods we can do so only if we have absolute certainty that in that moment we are feeling no malice, no anger, no rage, no frustration and no resentment towards the child. Who among us could be sure of that? I know that when I hit my son, I did so out of anger and frustration that I had not protected him and prevented him from doing what he did.

Corporal punishment is the most widespread form of violence against children. If the child is old enough to be smacked, they should be old enough for alternative consequences. Surely for the youngest people in our society, discipline should always be about educating them through better methods than that.

When we raise a hand or an object to a child, whatever their age, we signal to them nothing other than intent to cause pain and suffering. No adult will ever look back on their childhood with fond memories of their physical punishments, nor will anyone recall a stark change in their motivation to alter their behaviour. The overriding memory will be fear, pain and upset, all of which are catastrophic for a child’s healthy emotional development.

Children are charged to us to care for, in the same way as we should care for all vulnerable people in our society. We must take care with the fragility of those who are in our care, and we must understand that each and every action that we take will impact on their life—not just in that moment, but for the entirety of their time on this earth.

Instead of more discipline, we need more tolerance, patience and love. Countries all over the world are taking steps to protect the rights of children by affording them equal protection. Some 54 countries have prohibited physical punishment of children, and a further 56 have committed to reforming their laws to ban physical punishment in all settings.

The United Kingdom is one of only four EU states not to have legislated to prevent physical punishment of children. I am therefore proud that this Parliament is taking the first steps towards a brighter future for all our children. I fully support the principles of John Finnie’s bill.

16:09  



Margaret Mitchell (Central Scotland) (Con)

I welcome the opportunity to speak in this debate on the Children (Equal Protection from Assault) (Scotland) Bill. The stage 1 report states that the purpose of the bill is

“to abolish the defence of reasonable chastisement, and drive a cultural change to discourage the use of physical punishment. The defence of reasonable chastisement can currently be used by parents and others caring for or in charge of children if they are prosecuted for assaulting a child. The defence allows for physical force to be used to discipline a child, with some restrictions set out in the Criminal Justice (Scotland) Act 2003, s.51.”

Although I do not for a second doubt the well-intentioned motivation of John Finnie in introducing the bill, or that of those who support it, the fact is that rather than driving cultural change and discouraging physical punishment, the bill will criminalise reasonable chastisement and the parents who do not rule it out as a measured and proportionate tool in the box, to use in certain circumstances, should they consider it to be appropriate, effective and necessary.

Alex Cole-Hamilton

Will the member give way?

Margaret Mitchell

I will give way for this intervention, but I want to develop the argument.

Alex Cole-Hamilton

Margaret Mitchell referenced use of a “proportionate tool” and the Criminal Justice (Scotland) Act 2003, which sets the limits of physical punishment to banning head shots, use of implements and shaking. That is it. Does she not recognise that that creates confusion and a grey area that will lead to parents harming their children quite significantly in deploying that resource?

Margaret Mitchell

The confusion in the debate—for which Alex Cole-Hamilton, too, is guilty—is to talk repeatedly about assault and assault of children without taking any cognisance of what determines assault in law. Christine Grahame made the point very effectively that it is about context, the circumstances and the relationship. By abolishing the defence of reasonable chastisement, that whole law of evidence is being turned on its head.

Supporters of the bill insist that criminalisation is not what the bill aims to achieve. Nonetheless, that will, without doubt, be a consequence of abolishing the defence. That cannot be dismissed or glossed over. Put simply, it is not satisfactory or acceptable to legislate for one outcome and to hope for another. Above all, the law must provide clarity.

John Finnie

Will the member take an intervention?

Margaret Mitchell

If John Finnie does not mind, I realise that I am speaking in the minority, so I want to develop this argument, which I think is worth listening to.

The Crown Office and Procurator Fiscal stated in a written response to the Equalities and Human Rights Committee that it is quite possible that the reporting of the assault that is described by the bill will increase through removal of the defence of reasonable chastisement, and through the increase in reporting that will result from the publicity and awareness raising that usually accompanies legislation.

The Crown Office has acknowledged that there is a lack of case law to determine when physical contact that is of an extremely minor physical nature could be considered to meet the public interest test on prosecution. However, we know that, under the bill’s provisions, cases are to be assessed individually, and that in order to establish whether there was criminal intent there will, at the very least, be a police investigation and a referral to the procurator fiscal, or even a criminal trial. A valid question to be posed is what will happen to the children when those investigations are in progress. Will they remain with their parents or be taken into care?

John Finnie rose—

Margaret Mitchell

If the latter is to be the case, that could, given the delays in the court process, result not just in a lengthy separation but in all the other well documented trauma-related adverse consequences that are suffered by children in care. However, if, as John Finnie has said,

“The bill’s intention is not to criminalise parents, but to set out a direction of travel about child welfare and child upbringing”—[Official Report, Equalities and Human Rights Committee, 28 March 2019; c 21.]

and to support children, it seems to me that there is a better way to move forward.

Language is important. In the bill, light and rare physical chastisement is equated to child abuse and is described as assault. That is emotive language that polarises opinion and stifles informed debate about how to achieve the best child welfare policies.

More generally, further work requires to be done regarding, on one hand, use of restraint and physical intervention by a parent to keep a child safe, and on the other, restraint in education and care settings, where the behaviour of certain groups of children can be challenging, and in which restraint is used in order to contain them, not to punish them.

I accept that in order to drive the cultural change to discourage use of physical intervention there needs to be more awareness and clarification of the existing law, of what constitutes “reasonable chastisement” and, crucially, of the parenting support that is available to families. As was mentioned by Angela Constance and James Dornan, if a parent has smacked a child due to loss of control or stress, surely the focus should be on ensuring that the necessary support is available to help them to cope, and not on issuing a police warning or prosecuting.

At present, the routes that the Scottish Government will utilise to communicate with parents are not clear. The best and most effective way forward is not to rush to legislate to ban the defence of reasonable chastisement, but to support the Equalities and Human Rights Committee’s request for an outline of how the Scottish Government intends to reach families who are not currently engaged with relevant services, and details of the support that will then be made available to them.

16:16  



Richard Lyle (Uddingston and Bellshill) (SNP)

I remind the chamber that this is a member’s bill from the Scottish Green Party. Today, I will be out of step with the majority. So be it. The bill raises the spectre of good parents being criminalised for using mild chastisement, and police and social workers having to waste time investigating decent families when they should be focusing all their attention on identifying child abuse.

I am very much against parents hitting, slapping or abusing their kids. It is wrong. Rightly, we are all committed to protecting children from any violence. The law is very clear on the matter—it prohibits all violence against children. Section 51 of the Criminal Justice (Scotland) Act 2003 specifically outlaws shaking and the use of an implement.

Supporters of the bill claim that the UN Convention on the Rights of the Child compels us to ban smacking, but I do not see that in the text of the convention. Article 19 of the UNCRC states that children should be protected from violence, abuse and neglect. It seems to me that Scotland already fulfils its obligations under the convention and that our law is clear and progressive. I remind members that the law in this area was updated as recently as 2004. Back then, another proposal to criminalise smacking was abandoned in what the then cabinet secretary described as a victory for common sense. We are a very long way from days of yore, when parents could belt a child or use the underside of a slipper. Any adult who does that in Scotland today can expect to be punished severely by the courts, and rightly so.

The member’s bill concerns the defence of justifiable assault or reasonable chastisement. That defence allows parents to use a tap on the hand or a smack on the behind without being prosecuted. That is all it does. I am not aware of any evidence from the courts or the police that the law is ineffective or allows parents to use unreasonable force on their children. It will make a tap on the hand or the bottom a criminal offence, which is why the newspapers call it a smacking ban.

My children grew up in a loving environment. I am a grandfather of three beautiful grandchildren, whom I have the privilege of spending time with regularly. They are my life and my wife’s life. My time with them has made me realise that the bill could or would hurt families. It is not uncommon to see a parent or a grandparent giving a child a wee tap on the backside in public, even in a playful way.

I saw that happening as I waited to collect my grandson from primary school one day. A grandfather had his granddaughter in his arms, and he gave her a playful tap. The little girl was laughing but, from a distance, that could have looked like a smack, and it could have been reported to the police. What then? Someone could have reported that grandfather for what they mistakenly saw.

Supporters of the bill claim that the police will never prosecute those actions, but how can they be so sure? Under the legislation, smacking will be reported to the police, and the police will have to record that as a crime and investigate it. They might arrest a mum or a dad and question them, and that might mean getting a child in a room on their own and trying to get a statement from them against the mum or the dad. Under the legislation, the police and social services will be inundated with trivial reports, which they will have to treat as seriously as they currently consider abuse. I am sure that front-line professionals, who are already under great pressure, will not appreciate the additional workload, especially when resources are so stretched already.

Alison Johnstone (Lothian) (Green)

Will the member take an intervention?

Richard Lyle

No.

I wonder how the legislation will be misused in domestic circumstances when relationships between parents have broken down. Dishonest parents might accuse their spouse of smacking in order to prevent access to children. [Interruption.] That happens. Do not think that it will not happen, because it will.

It is clear to me and the majority of people whom I represent in the Uddingston and Bellshill constituency that the law in question is unnecessary. The polls that I have seen confirm that 74 per cent of people do not want a smacking ban, and I have received numerous emails from concerned constituents that confirm that.

With the greatest regret, in my 43 years in politics, I have sometimes had to stick up and stick to my guns, even against the tide. Even against the majority, I cannot lend my name to the bill and, in all conscience, I have to abstain. I hope that my reasons for doing so are not misunderstood or misinterpreted by anyone.

The Presiding Officer (Ken Macintosh)

Mike Rumbles will make a brief speech.

16:22  



Mike Rumbles (North East Scotland) (LD)

I was not down to speak in this debate, but I want to respond to Annie Wells, Gordon Lindhurst and Margaret Mitchell in particular.

The issue was raised 16 years ago, when I was an MSP in the first session of Parliament. Like the members whom I mentioned, I was worried about criminalising good parents and—to my shame—I did not support the measure. I am now a convert to the cause, and I hope that my comments will reassure members such as Annie Wells, Gordon Lindhurst and Margaret Mitchell that their fears about criminalising parents are misplaced.

I changed my mind because of my experiences on the Health Committee in the second session of Parliament, in which we passed the ban on smoking in enclosed public places. We heard the same argument—that we would see a huge rise in prosecutions of previously law-abiding people.

Oliver Mundell

Will the member take an intervention?

Mike Rumbles

I have only one more minute.

That simply did not happen. Because of that, I do not believe for one moment that we will see previously law-abiding and loving parents being dragged into our courts. That will not happen.

Oliver Mundell

Will the member take an intervention?

Mike Rumbles

I have only one minute.

This is not about attacking the rights of good and loving parents or about the state telling parents how to bring up their children; it is about removing the defence in law of reasonable chastisement from people who are already likely to be in front of our courts. I say to members such as Annie Wells, Gordon Lindhurst and Richard Lyle that their worries are unfounded.

This member’s bill is about our Parliament doing its job. I gently remind Gordon Lindhurst that this is only the stage 1 debate and that the bill could not be amended before stages 2 and 3. I am therefore somewhat puzzled by his earlier comments.

Gordon Lindhurst

Will the member give way?

Mike Rumbles

Unfortunately, I cannot, as I have only 10 seconds left.

I speak as a convert on the issue. I urge those who are worried about the bill to engage with it at stages 2 and 3. I hope that, after our further scrutiny of it, they will see the sense of the measure, as I have done. I only wish that I had done so 16 years ago.

16:24  



Fulton MacGregor (Coatbridge and Chryston) (SNP)

It is a great pleasure to speak in the debate as a member of the committee that scrutinised the bill at stage 1 and as a former social worker. I, too, thank John Finnie for introducing the bill.

The bill is really simple for me to support. Its simple premise is to give children equal protection to that for adults. As we have heard from other members, it will remove an outdated defence that belongs firmly in history.

The Parliament has a strong track record of progressive legislation on, among other things, domestic abuse and children’s rights. It is about time that we joined the 54 countries that have been mentioned and removed the defence of reasonable chastisement.

As other members have said and as the committee heard, the vast majority of the agencies that spoke to the committee and contacted us are for the bill, which has strong support from Barnardo’s, Children 1st, Amnesty International and many other organisations. That in itself should tell us something. Those organisations support the bill because—to disagree with Tory members and some folk in my party—it is a no-brainer. If we were 20 years down the line, the proposal would be in secondary legislation, although I do not say that to diminish what Mr Finnie has introduced.

We know that physical punishment is harmful and can lead to aggressive behaviour; those points have been made well by others. The Tories have tried to make politics out of the situation—we heard that from Oliver Mundell and Annie Wells, who I mention because they are members of the committee but did not fully engage in the process. [Interruption.] They did not.

Annie Wells

Will the member take an intervention?

Liz Smith

Will the member take an intervention?

Fulton MacGregor

No.

Those members say that they are against violence against children, but they are not. They want to keep us in the deep past and they do not have the dignity even to alleviate the public’s genuine concerns.

Liz Smith

Will the member take an intervention?

Fulton MacGregor

I will not, because I have not been able to make one intervention today.

Some members, including Tory members, and some in the public have not heard all the evidence, so I will try to alleviate the fears that have been expressed, which Christine Grahame, Richard Lyle and others raised. The bill is not about the criminalisation of individuals. I was a children and families social worker for about 12 years from 2004. In considering the bill and my experience, I thought about what would happen now if a referral was made because of an allegation of an assault or smacking. Social work services and other agencies would investigate and take a measured welfare and support-based approach. If there was criminality to be considered, that would be dealt with through a joint investigative interview with the police, and a decision would then be made on whether to refer the case to the procurator fiscal, who decides on the public interest test.

The hypothetical situations in which parents would be criminalised for stopping their child running on the road are absolutely ridiculous. That would not happen now and will not happen if the bill is passed. Members should think of the process and the journey that would be required for that to happen. A child would need to say in school or in a health facility that their parent stopped them running on a road; the situation would then be investigated at that point of contact. [Interruption.] I see that Mr Mundell is laughing because he knows that that is true, because he is a member of the committee.

Oliver Mundell

Will the member take an intervention?

Fulton MacGregor

I apologise, but I will not.

Margaret Mitchell’s example of parents being suddenly criminalised was scaremongering.

Oliver Mundell

Will the member take an intervention?

Fulton MacGregor

No.

Social Work Scotland and Police Scotland told the committee that nothing would change—not a thing—and that referrals would be dealt with in exactly the same way as now. From my experience, I cannot mind once thinking about the defence being used. When I went out to family situations with colleagues, I thought about the support that was around and how to safeguard a family, but I never thought once about a family using the defence.

Any occasions when criminal proceedings were pursued were clear. I started in social work not long after the 2003 act was passed and I probably was not exactly clear about the legislation, which I think is the case for many practitioners. A main principle of John Finnie’s bill is to provide clarity for practitioners and parents. Most important, it will send a message about the country that we want to be.

The bill will make the law and processes clearer. Anyone who knows John Finnie and the committee members who are in favour of the bill will know that they can trust us. We have been through the committee process and we would never be in favour of the unnecessary criminalisation of parents, which is the last thing that is on our minds. The evidence from other countries is very clear that that would not be the case—in fact, far from it.

Make no doubt about it, the Tory policy is to degrade the rights of our children. Some people think that the bill is about state intervention. I say to those Tory colleagues of a more liberal standing and to my fellow SNP members who are thinking about voting against the bill to please not leave children with fewer rights in their own home than any adult or animal. Be assured that child support and protection processes in our country are robust and will not allow the fears that the right-wing fundamentalists on the Tory benches want us to believe. They say that people should not vote for the bill because they say that it is an assault on family life and child’s rights. That is not on. Please vote in favour of the bill’s principles at stage 1.

16:30  



Iain Gray (East Lothian) (Lab)

We sometimes have debates in which there is a great amount of consensus, but that has not happened today. Interesting points have been made, and I will try to address some of them.

It is worth going back to the basics of why we are pursuing the legislation. There are two significant reasons of principle. The first is equal protection—indeed, “Equal Protection” is part of the bill’s title. As many colleagues have pointed out, the bill is not designed to create a new crime; rather, it would remove a defence that is available only when it comes to the chastisement of children. I think that it is difficult to get past the very simple statement that, if it is wrong to hit an adult, it must be wrong to hit a child. Mary Fee gave an example of a carer assaulting a vulnerable adult under their care. It seems clear that that is wrong; it is also very difficult to see why that would be right if that was a vulnerable child rather than a vulnerable adult.

Secondly, there is the principle of rights. A number of members have spoken about the rights basis for the legislation. Indeed, we know that the Government has committed to the incorporation of the UNCRC into our legislation. In 2016, Scottish Labour also promised in its manifesto to do that, so we support that measure.

Ross Greer and Gail Ross have clearly articulated that our current legislation breaches article 19 of the UNCRC. I know that Richard Lyle took issue with that, but I think that the expert opinion that the committee heard is that article 19 has been breached.

Those are two very strong reasons why we need the legislation.

Oliver Mundell

I hear what the member is saying about article 19, but does he not recognise that it is important to put that question to the Lord Advocate before we can say that definitively?

Iain Gray

I am absolutely sure that that opportunity will be taken during this legislative process, and that the point that I have just made and Richard Lyle’s earlier point will be fully considered.

It is fair to say that a number of significant concerns have been expressed across the chamber. One concern is that parents would be criminalised, and we have heard about a number of hypothetical injustices relating to situations in which that would happen, but surely the strongest evidence is what has happened in countries that have introduced legislation similar to John Finnie’s bill, notably Ireland and New Zealand. In those countries, there has been no sudden criminalisation of thousands of parents.

We have also heard the concern that the police will be inundated with cases. Again, in those two countries, that has not happened. In addition, we see in the committee report that, in their evidence to the committee, the police and the Crown Office and Procurator Fiscal Service did not consider that they would be inundated by reports arising from such a change in the legislation.

Oliver Mundell talked about the restriction of parental rights and discretion; some of his colleagues raised similar issues, including to do with the right to family life. The fact of the matter is that we already restrict parental rights and discretion—of course we do.

Oliver Mundell

Will the member take an intervention?

Iain Gray

No—I am short of time.

The right to family life is not an absolute right but a qualified one. As a number of members have pointed out, it is not protected to the extent that domestic violence within a family is allowed; it is not, because we consider such violence to be unacceptable.

The minister made the point that she supports the legislation, and the Government supports the bill because of its desire to make Scotland the best country in which to be a child. While that is a laudable objective, I have to say that if we want it to be true, we should not fool ourselves into thinking that passing the bill will achieve it. Only last week, we heard that 240,000 children in our country live in poverty. The Poverty and Inequality Commission has spoken of the failure of Government spending to address that. In a similar report, the Institute for Public Policy Research has spoken of the importance of fast-tracking the income supplement, on which the Government is dragging its feet. We should not kid ourselves that by passing this legislation, we will resolve all the difficulties and challenges that children in our country face today.

Some members have spoken about the last attempt to make a similar change, which was back in 2002. I was here at that time, and I believe that attitudes have changed significantly since then—Mike Rumbles’s attitude has changed, for one, and those of the public and civic Scotland have changed very much. Others have talked about the banning of the belt. When I look at a belt now, I cannot believe that, when I was a teacher, children as young as my own grandchildren were being hit by a Lochgelly tawse, which is a pretty big instrument made of leather. When that ban came in, people thought that it was going to cause all sorts of difficulties, yet it did not. Attitudes change over time. However, Ross Greer reminded us that that ban happened only because Grace Campbell went to court. We should change this law before we are forced to do so by a court.

16:37  



Liz Smith (Mid Scotland and Fife) (Con)

In recent weeks, political commentators have, quite rightly, observed that the 20th anniversary of this place affords us the opportunity to examine how well we do things, and whether we are delivering effective legislation to improve the lives of those whom it is designed to assist. They reflect that such an anniversary is a time to consider what we have got right or wrong, examine our parliamentary procedures and assess whether our political system is sufficiently robust as far as passing good legislation is concerned. I am grateful to Christine Grahame for her very interesting remarks about her earlier time in the Parliament, particularly in flagging up what has to be done in order to make good legislation. She spoke about the Domestic Abuse (Scotland) Bill and the facts that had to be put before the Parliament before we could agree to take action on that issue.

Good legislation must be clear and uncomplicated; based on fairness and maximising the common good; acceptable to the public, who must see it as both useful and beneficial; and, as far as possible, easily enforceable and not open to constant debates about its repeal. Like Margaret Mitchell, I do not doubt for a minute the good intentions of this bill’s promoter, but many of us in the chamber—and not just on the Conservative benches—have grave reservations about what we have before us. That is not just because it does not meet the tests for good legislation, but because it has exposed—

Alex Cole-Hamilton

Will the member take an intervention?

Liz Smith

I will not just now, if the member does not mind.

It is also because the bill has exposed failings in some aspects of parliamentary procedure, especially when it comes to laying the necessary evidence before Parliament, about which I will say more later.

Fulton MacGregor might wish to revise his earlier remarks. To criticise members of the Parliament because he believes that they have not taken due process into consideration is, quite frankly, a disgrace and undermines the respect that each member must show to others here.

As my Conservative colleagues have argued, the fundamental failing of the bill is its single proposal to classify reasonable chastisement as assault. Various members have tried to argue that the two can be classified in the same way. I simply do not accept that—and neither does the law. The bill also represents the unnecessary and unwanted transfer of power away from parents and the family to the state—and we know what the reaction of the vast majority of parents has been to that.

Whatever the bill’s proponents might like to argue, it will remove parental discretion and create the scope to criminalise parents’ actions if they administer a mild smack. That cannot be right, and it no doubt explains why so many parents oppose the bill. Nor is there any necessary clarity in the bill, because it is not supported by any evidence—including any conclusive evidence from other countries—that proves that it will make children safer. Indeed, the bill is so weak because of the grey areas that it contains, most of them resulting from the completely mistaken view that reasonable chastisement equals assault.

For example, are we really saying that when a parent administers a mild smack to a small child for safety reasons, to ensure that he or she does not touch an electric plug, they will be reported as having committed an assault? That is an open-ended question.

John Finnie

Will the member give way?

Fulton MacGregor

Will the member give way?

Liz Smith

I am interested in Mr Finnie’s view about that open-ended question, which—as the Crown Office acknowledges—creates confusion, misunderstanding and unnecessary additional anxiety for the parent.

John Finnie

Liz Smith assumes that the individuals who make decisions about children every day will suddenly suspend all the knowledge that they have applied thus far in relation to this issue—that is not the case.

Is Liz Smith in a position to tell the chamber when she thinks it is appropriate to commence chastising children? At what age is it reasonable to start hitting a child?

Liz Smith

I am perfectly happy with the current law, because I do not believe that anybody has provided the evidence to explain the bad aspect of the current law.

I refer to what Christine Grahame and Mike Rumbles said about the original legislation that we considered in 2002 and 2003, when we debated the issue for a long time. I will come on to what Jim Wallace said during that debate. First, however, my good friend, the late David McLetchie, made the point that

“The Scottish Parliament should learn to leave well alone and resist the temptation to interfere and legislate at every turn when it is unnecessary to do so”.—[Official Report, 18 September 2002; c 10822.]

Jim Wallace, who proposed the bill, accepted that it would not introduce any protections against actions that could not reasonably be dealt with by the courts—and the same remains true today. That is the fundamental problem with Mr Finnie’s bill. It is not supported by evidence that additional protections are required. There is no evidence.

Patrick Harvie (Glasgow) (Green)

I am grateful to Liz Smith for giving way. I have tried to listen as closely as I can to those who do not support the bill. However, they all seem to have avoided one question: if they are right, why are the voices of children’s rights organisations so clearly behind the bill? Why, if so many people whose professional expertise is in children’s rights and wellbeing support the bill, do only the Conservatives have it right?

Liz Smith

Has Patrick Harvie listened to the opinion polls among parents? Those are the very people who, through their actions, would potentially be made into criminals by the scope of the bill. That is the problem.

I understand that many charities have spoken in favour of the bill. However, many parents across Scotland have taken the complete opposite view, which tells as much of a story as those who support it.

The remarks at the beginning of my speech were about the legacy of this Parliament after 20 years, and the question whether we can take pride in passing good legislation. As things stand, this bill—just as was the case with the deeply troubled named person legislation—is very wide of the mark on meeting the key tests that underpin good legislation. Just like the named person legislation, it does not have the support of the public.

Alex Cole-Hamilton

It is incomparable with the named person legislation.

Liz Smith

It is not incomparable. That is because it is unnecessary interference, and because it is unworkable.

I am also deeply troubled about the bill because of the manner in which it has so far been scrutinised, which has exposed fundamental weaknesses. I hope that you will agree, Presiding Officer, that it is entirely wrong that the stage 1 debate on the bill is happening prior to crucial legal opinion having been placed before the Parliament.

As a longer-serving member of this Parliament, I am frankly astonished that it has been seen as acceptable to proceed to stage 1 without the Lord Advocate having appeared before the committee to answer questions on the bill, and without the point of order that was raised by my colleague Oliver Mundell on 15 May having been properly addressed. Together with the fundamental failings of the bill, that is why I will certainly not support it at the end of today.

16:45  



Maree Todd

I am grateful to those members who have contributed to the debate, and I will address some of the specific points that have been raised.

On the issue of criminalisation of parents, in other jurisdictions that have implemented similar legislation, there has not been a significant increase in prosecutions. We expect that to be repeated in Scotland. In Ireland and New Zealand, the change in law was similar to that proposed in Mr Finnie’s bill—

Oliver Mundell

Will the minister take an intervention?

Maree Todd

No, I will not take an intervention. I am sorry, but I wish to respond to a number of issues that have been raised during the debate, so there will be limited time for me to take interventions. Mr Mundell had multiple opportunities to intervene during my opening speech, and I hope to answer all the issues that have been raised during the debate in my closing speech.

In Ireland and New Zealand, the change in law was similar to that proposed in Mr Finnie’s bill—the removal of a defence—and neither country has seen a significant increase in prosecutions. In New Zealand, there were just eight prosecutions in the five-year period after the law came into force, and the committee heard that, in Ireland, the Office of the Director of Public Prosecutions

“has found no evidence of any increase in the number of prosecutions.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 12.]

Of course, the approach in other countries varies, as legal systems and approaches vary. Nevertheless, the point is that physical punishment is wrong. The bill fits the legal system in Scotland.

Members have asked whether the bill criminalises smacking. As the Crown Office and Procurator Fiscal Service said to the committee in its supplementary submission:

“The Bill, as currently drafted, removes a defence to behaviour which otherwise falls within the scope of the common law crime of assault, rather than creating a new crime. The practical effect of that would be that some acts carried out as physical punishment, which may be commonly referred to as ‘smacking’, would no longer benefit from the defence of reasonable chastisement and would fall to be considered in terms of the law of assault as it applies generally.”

What is the approach to prosecutions? Decisions on prosecutions in individual cases are entirely a matter for the Crown Office, acting under the direction of the Lord Advocate. Similarly, it is for the Lord Advocate alone to consider whether guidelines in relation to prosecution will be drafted and published. The Crown Office prosecution code sets out the test that prosecutors apply when deciding whether to take prosecutorial action.

Richard Lyle raised the issue of unnecessary action being taken by the police and the Crown Office and Procurator Fiscal Service in trivial cases. The written evidence makes it absolutely clear that professional prosecution will follow the Scottish prosecution code, as it does now.

Oliver Mundell

Will the minister take an intervention?

Maree Todd

Can I please address the issues that were raised during the debate?

Oliver Mundell

The minister is making new points.

The Presiding Officer

Please continue, minister.

Maree Todd

First, prosecutors must establish whether any report that is received discloses a crime that is

“known to the law of Scotland”.

Secondly, prosecutors assess whether there is

“sufficient admissible, reliable and credible evidence”

that the offence was committed and that it was the accused person who committed it. Finally, prosecutors consider what action, if any, best serves “the public interest”. In doing so, the Crown Office takes into account a range of applicable criteria, such as:

“The nature and gravity of the offence ... The impact of the offence on the victim ... The ... personal circumstances of the accused ... The attitude of the victim ... The age of the offence ... Mitigating circumstances ... The effect of prosecution on the accused ... The risk of further offending”

and considerations relating to “public concern”. The Scottish Government considers that the main aim of the bill is to make it clear that the physical punishment of children is wrong, rather than to criminalise parents.

With regard to clarity in the law, as Rona Mackay said, the committee heard that, in Ireland, different civil society organisations and state agencies are positive about the clarity that was brought by the change in the law, and social workers have better relationships with parents because they can provide clear advice. That does not fit with the spectre that is being raised of a huge number of increased concerns and overburdened people having to respond to minor issues. It echoes the evidence that the committee received from Social Work Scotland, Barnardo’s Scotland, the NSPCC in Scotland, Children 1st, the Royal College of Paediatrics and Child Health, Parenting Across Scotland and the Law Society of Scotland. There is broad civic support for this change in legislation. All of those organisations agree that the bill will bring clarity to the law.

As a number of contributors, including Rhoda Grant, said, the bill will remove the judgment around how my reasonableness compares with that of others. It will send a clear message that the physical punishment of children is unacceptable. It is a clear message to society that clarifies the law. As the Crown Office put it, the common-law crime of assault is well understood and widely used to prosecute offending in courts across Scotland, resulting in a large number of convictions each year. The Crown Office added:

“The Bill proposes to remove this defence which means that the legal situation would be simplified and children would receive the same protection from assault as adults.”

Gordon Lindhurst said that the Lord Advocate had not given evidence, but I have to correct that. The Crown Office and Procurator Fiscal Service gave detailed written evidence to the committee. Gordon Lindhurst also said that the bill tells parents how to parent. It does not. It makes it absolutely clear that parents will still have a range of positive techniques at their disposal when disciplining their children.

On the issue of interference with family life, we are not aware of any international treaty provision that gives parents the right to physically punish their children. We note that the committee came to the same conclusion in paragraph 95 of its stage 1 report.

Murdo Fraser—I think—asked why the physical punishment of children is different from all the other forms of discipline that might be used, such as the removal of privileges and the naughty step. Let me be clear: the difference is that there is a solid body of evidence that physical punishment is harmful. I remind members that the bill is supported by the Faculty of Public Health and the Royal College of Paediatrics and Child Health. There is even a statement opposing physical punishment from the American Academy of Pediatrics.

I will read the evidence that the Royal College of General Practitioners gave during the passage of the Welsh bill:

“The balance of evidence seems sufficiently clear and compelling to inform us that parental use of physical punishment of children plays no useful role in their upbringing and poses only risks to their development.”

That is from the Royal College of General Practitioners—scientists who are used to assessing the quality of the evidence that is available to them and coming up with advice to the people whom they serve.

Liz Smith

Will the minister give way?

The Presiding Officer

The minister needs to conclude, please.

Maree Todd

I again thank the committee for its consideration of the bill, and I thank Mr Finnie for taking it forward. I urge members to support the general principles of the bill.

16:53  



John Finnie

I thank all those members who have participated in what has been an interesting debate. It started with the committee convener talking about the committee’s ambitious programme of engagement. I had forgotten about the snowstorm; it is commendable that people went to share their views with us. Mòran taing to all the kids at bun-sgoil Ghàidhlig Phort Righ.

The convener talked about a rights-based approach and said that the deliberations were about children being at the core. We forget at our peril that that is what the bill is about.

There was also early mention by the convener of a conflict of rights. We have made a clear statement that stopping the physical punishment of children does not interfere with the right to family life. The point about holding our children and keeping them safe was a good phrase in that speech.

The minister followed that speech by citing the evidence and talking about the work that the Scottish Government is doing to make Scotland the best place for children to grow up in. The concept of reasonable chastisement is antiquated and at odds with that aim, and I certainly share that view. I also share the minister’s view that there should be the same legal protection for all individuals, regardless of their size.

There was much speculation about the public interest test, and I tried to intervene. There is little mystery about it. Indeed, it is covered in the explanatory notes, as are a lot of the points that were raised. In paragraph 13, on page 3, footnote 6 provides a link to the web page that explains all the factors that are taken into account. Nothing will change in relation to the public interest test.

The next contribution came from my good friend and colleague Mary Fee, who gave—as ever—an excellent speech. She cited the example of adults with a learning disability and what the public reaction would be if they were subjected to assault, giving the clear statement that assault is assault. That is unequivocal. Another important point that Mary Fee made was that the Parliament is a guarantor of human rights. That is absolutely clear. There is an imbalance at the moment, as Mary Fee rightly identified, and the bill will be part of a culture change.

My colleague Ross Greer gave a comprehensive résumé of the rights and shortcomings that exist. Those are acknowledged by the Scottish Government. Indeed, they were acknowledged by the Equalities and Human Rights Committee, which commended the approach for the incorporation of the UNCRC. I share Ross Greer’s view that the human rights task group’s findings must be acted on. “You just do not hit children” is a good statement. Ross Greer was brave to talk about personal faith, and I appreciate the faith groups’ contribution to the debate. I am particularly grateful to those that lend their support to the bill, not least the Quakers and the Church of Scotland. We are rights holders in the Parliament and we need to do that.

The next speaker was Mr Cole-Hamilton. I acknowledge his support throughout, the advice that he has generously shared with me and his long-standing commitment to the cause, which predates many of ours. His father’s face is in my thoughts at the moment, given the retribution that he took on his father. He is right to say that there is an international imperative.

Mr Cole-Hamilton also made the first substantive mention of the police. Chief Superintendent McKenzie gave compelling evidence to the committee, explaining—along with his colleagues from social work who were sitting by his side—what happens at the moment: the shared work that takes place, the interest of the child being at the forefront of deliberations and the public interest being a factor. He explained that nothing would change—that, if anything, greater clarity would be provided. “No right to hit” was a phrase that Mr Cole-Hamilton used.

I will not have time to cover everyone’s contribution, but Angela Constance made another excellent speech. Yes, I was a police officer, which might surprise some people. I was struck as a child and I struck my children, but we are all the richer if we learn from our experience, and that is what it is. The unfolding evidence of the damage is irrefutable. The phrase “It never harmed me”—

Liam Kerr

Will the member take an intervention?

John Finnie

Yes, I will.

Liam Kerr

My colleague Liz Smith raised some important procedural points. Will the member come back on the points that Liz Smith raised?

John Finnie

If this is about accusations and what would happen, I can say that nothing would happen differently.

Liam Kerr

It is about the evidence.

John Finnie

I do not feel that it is for me to comment on that. Members’ views have been shared with the Presiding Officer. Unlike some committee members, I attended every evidence session, and we heard compelling and comprehensive evidence. I did not hear any attempt to stop our hearing evidence. There were also a significant number of written submissions.

Alex Cole-Hamilton

I can clarify that the committee went to great lengths to encourage representations from groups that are opposed to the bill and from the Crown Office and the Lord Advocate, with both submitting written evidence. I agree with the member that the evidence that the committee received was as comprehensive as it could be.

John Finnie

Annie Wells talked about legal clarity. It was not apparent to me that she had taken on board all the information that was available—she was certainly not at all the evidence sessions that I was at.

Rona Mackay was the next speaker, and she talked about learned behaviour, which is a significant factor.

How long do I have left, Presiding Officer?

The Presiding Officer

You can have two minutes, Mr Finnie, if you want.

John Finnie

Thank you.

Likewise, Rhoda Grant made a powerful speech in which she talked about verbal assault. We know that there are checks and balances in the system, which gives reassurance.

Gail Ross spoke about the incorporation of rights, the baby box and the general direction of travel.

I have to say that Mr Lindhurst, who would not take an intervention and who is clearly the Tories’ aspirant legal shock jock, was way off the mark.

Claire Baker said that she was convinced that children need equal protection and mentioned the work of Scott Barrie in a previous session, which is to be commended. She was right to say that this is “unfinished business”.

James Dornan gave an excellent speech, and I am grateful to my colleague Mike Rumbles. It was courageous of him to say that he has changed his mind on the basis of the evidence that has been received.

That evidence has been overwhelming. It suggests that the physical punishment of children is ineffective and potentially has long-term effects. We know that young people support the proposed change, as do practitioners: the police, social work, health professionals and legal professionals. The children’s charities support it, along with members of all five parties in the chamber. It is time to give children equal protection.

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

There is one question to be put. The question is, that motion S5M-17342, in the name of John Finnie, on the Children (Equal Protection from Assault) (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smyth, Colin (South Scotland) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lochhead, Richard (Moray) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Scott, John (Ayr) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carlaw, Jackson (Eastwood) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

Abstentions

Lyle, Richard (Uddingston and Bellshill) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

The Presiding Officer

The result of the division is: For 80, Against 29, Abstentions 2.

Motion agreed to,

That the Parliament agrees to the general principles of the Children (Equal Protection from Assault) (Scotland) Bill.

MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Who spoke to the lead committee at Stage 2 about the Bill

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First meeting transcript

The Convener

Agenda item 2 is the Children (Equal Protection from Assault) (Scotland) Bill. I welcome the Lord Advocate, James Wolffe QC, and Anne Marie Hicks, the national procurator fiscal for domestic abuse at the Crown Office and Procurator Fiscal Service. Good morning—you are both very welcome. I invite the Lord Advocate to make an opening statement of up to five minutes, please.

The Lord Advocate (Rt Hon James Wolffe)

Thank you, convener. I am grateful for the invitation to give evidence again to the committee, as head of the system for the investigation and prosecution of crime in Scotland, and to supplement the written evidence that you have already received from the Crown Office and Procurator Fiscal Service.

The bill that you have under consideration will simplify the law by removing from the law of assault the defence of reasonable chastisement and by repealing section 51 of the Criminal Justice (Scotland) Act 2003, which restricts the scope of that defence. It is worth being clear at the outset that, as the law stands, parents do not have an unqualified right to smack or chastise a child. Subject to the defence of reasonable chastisement, an assault by a parent on a child is a criminal offence. Allegations that a parent has assaulted their child are investigated by the police and reported to the Crown and may be, and are, prosecuted.

When considering any report of an alleged crime, the prosecutor must address two things: first, whether there is sufficient admissible, credible and reliable evidence that the accused has committed a crime known to the law of Scotland; and, secondly, if there is sufficient evidence, what action if any would be in the public interest. Those considerations apply to an allegation that a parent has assaulted their child, just as they apply in any other case.

The Scottish prosecution code sets out the factors that may, depending on the circumstances, be relevant in assessing the public interest. Those include the nature and gravity of the offence; the impact of the offence on the victim and other witnesses; the age, background and personal circumstances of the accused; the age and personal circumstances of the victim and other witnesses; the attitude of the victim; the motive for the crime; the age of the offence; mitigating circumstances; the effect of the prosecution on the accused; and the risk of further offending.

The code points out that the actions that are available to prosecutors are not limited to prosecution. They include diversion, a formal warning and various direct measures that a prosecutor may offer as an alternative to prosecution. In appropriate circumstances, it may be in the public interest to take no action. Making decisions within the framework of the Scottish prosecution code is part of the daily work of professional prosecutors. If the bill is passed, cases that are reported to the procurator fiscal will continue to be assessed by reference to the two tests that I have mentioned: whether there is sufficient evidence in law that the accused has committed a crime and, if so, what action would be in the public interest.

Repeal of the defence of reasonable chastisement would not mean that the prosecutor would ignore the special features of the relationship between parent and child. Those features will be present in any consideration of the public interest. For example, they will be present in consideration of the context and circumstances of the alleged offence, the impact on the victim, the circumstances of the accused and the effect of a prosecution on the accused and the victim. Paragraph 40 of the United Nations Convention on the Rights of the Child general comment 8, of 2006, reminds us that,

“While all reports of violence against children should be appropriately investigated”,

it does not follow that all cases that come to light should be prosecuted.

If the bill is passed, I intend to issue Lord Advocate’s guidelines to the chief constable of Police Scotland on the investigation and reporting of allegations of assaults by parents on children. Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases. When appropriate, that response may include the use of informal response by the police, recorded police warnings, diversion and other alternatives to prosecution. At the same time, prosecution will be enabled when that is properly justified by reference to the circumstances of the individual case. The approach will be informed by our responsibility to protect children from harm and by a consideration of the best interests of the child.

I am confident that if the bill is enacted, Scotland’s prosecutors will continue—as they do today—to apply sound and responsible judgment to the cases that are reported to them in a way that is consistent with the values that underpin all prosecutorial decision making: impartiality, thoroughness, integrity, sensitivity and professionalism.

The Convener

Thank you. That was very helpful. We will move to questions.

Oliver Mundell (Dumfriesshire) (Con)

I put on record my thanks to the Lord Advocate for attending the meeting. I am pleased to hear that Lord Advocate’s guidance will be issued in the event that the bill is passed.

You mentioned the legal relationship between parents and children. Would you go as far as to recognise that that relationship is different and distinct from that between two adults, even when those two adults are connected?

The Lord Advocate

One of the things that one learns as a prosecutor is that every case must be considered on its individual facts and circumstances. In all the decision making that prosecutors undertake, they must look carefully at the specifics of particular facts and circumstances. When one is dealing with a case involving an alleged assault by a parent on a child, the fact that one is dealing with a parent and a child is one of the circumstances that must be considered.

As the statistics show, we see assaults by parents on children. When a parent assaults a child and the public interest justifies it, that case will be prosecuted.

Oliver Mundell

I am asking whether it is recognised in law that the relationship between parents and children is different from the relationship between two adults. Is it correct to say that that difference is recognised?

The Lord Advocate

There are legal aspects of the relationship that are particular to that relationship, and the factual context is different from that in other relationships.

Oliver Mundell

I am interested in what responsibilities the law places on parents and what rights they can exercise in relation to their children.

The Lord Advocate

I do not think that it would be right for me to give you a general exegesis on the law of parent and child. We are in a context in which parents have responsibilities in relation to their children; they also have certain rights, with a view to promoting those responsibilities.

Prosecutors will look at what the evidence is in any given case and whether it supports the conclusion that a crime has been committed. If a crime has been committed, they will look at the particular circumstances of the case in determining what action it is appropriate to take in response.

The Convener

A couple of colleagues would like to follow up on that specific point.

Oliver Mundell

I have one more question on the same point.

Do prosecutors take parents’ statutory rights and responsibilities into consideration—which involves looking across different pieces of legislation—when they decide whether it is in the public interest to prosecute?

The Lord Advocate

The responsibilities of parents for the upbringing of their children do not justify parents committing crimes against their children.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning. I want to follow up on Oliver Mundell’s line of questioning. I think that he was trying to bottom out where in statute the relationship between parent and child is defined. During my speech in the stage 1 debate on the bill, Murdo Fraser intervened to make the point that, if parenting techniques were to be applied to another adult—for example, if an adult was grounded or had something that they valued removed as a sanction—that would be seen as abusive or inappropriate.

If a person has a duty of care for someone who is in their charge, such as that which a parent has to their child, the same could be said for the duty to an elder relative with Alzheimer’s who has a mental capacity of a three-year-old and who is looked after. Is there a legal framework for the rights and responsibilities of people who have a duty of care? If so, is it different for people who care for their children and people who care for adults who have incapacity?

The Lord Advocate

As a generality, the legal framework differs. As a prosecutor, one is looking at whether the evidence discloses a crime that is known to the law of Scotland. In this context, that crime would be an assault: an attack on the person of another with deliberate intent. If that is what the evidence discloses, what does the public interest demand by way of response? Into that latter public interest question, all the relevant facts and circumstances of any case, whether it involves a parent and child or a vulnerable older person, would be taken into consideration.

Alex Cole-Hamilton

Something that has come up time and again in our consideration of the bill at stage 1 is the slight incongruity that an adult who is responsible for a child and an adult who is responsible for an adult who has a mental age of a child work within different parameters. We would not believe for a minute that an adult could exercise the defence of reasonable chastisement if they sanctioned an adult with the mental age of three. Is that incongruous?

The Lord Advocate

It is the current state of the law. The committee is considering whether the law should be changed. Prosecutors work within the law as Parliament lays it down from time to time.

Rhoda Grant (Highlands and Islands) (Lab)

You have mentioned that parents are currently charged with assault and prosecuted for it. Is the defence of reasonable chastisement used or are those offences so severe that nobody could use the defence?

The Lord Advocate

Prosecutors already see a wide range of offences. I asked for some illustrations and have been given examples that range from cases that were ultimately dealt with by a decision to take no further action, although prosecutors were satisfied that there was an assault in law, and cases in which options other than prosecution were taken, all the way up to some of the most serious cases that we see.

It may be important to separate out the stages of investigation and prosecution. Under the current law, of course, a case of an assault on a child would require to be investigated in order to assess whether, in all the facts and circumstances, that defence could properly be made out. I do not have any statistical information on the incidence of reliance on the defence by accused persons in those cases or, indeed, in the context of prosecutorial decision making. Anne Marie Hicks may like to add something from her experience.

Anne Marie Hicks (Crown Office and Procurator Fiscal Service)

Although it is easier for us to find the cases that involve an assault on a child by a parent or someone with carer charge of a child, it is not necessarily easy from that to see the cases in which someone may have tried to assert that defence. Certainly, in quite a number of the cases that we have had, the incident occurred in the context of an assault by way of punishment for something that they perceived that the child had done wrong. In one case, someone thought the child had been lying or had come home late; in another, they thought that the child had stolen money from a purse.

Clearly, a range of cases is reported to us; some involve direct violence without a punishment element, but there are definitely others in which the account given indicates that what happened was punishment for something that it had been deemed the child had done wrong.

09:30  



Oliver Mundell

Is there any public interest in prosecuting a parent for smacking or physically punishing their child where there are no child welfare concerns and where the action clearly did not result in any lasting pain? Could tests be put into the bill or set out in guidance to make it absolutely clear to parents what you feel amounts to criminal intent?

The Lord Advocate

As I said a few moments ago, in this and in many contexts, there is no substitute for paying very close attention to the facts of particular cases. Conduct that in one context might look relatively trivial or minor might, in another, carry much more serious significance. I am not trying to be unhelpful in not being drawn on responding to particular scenarios, but what I can say is that the kinds of considerations that you have mentioned will be taken into account by prosecutors when they look at a particular case.

Going back to my opening remarks, I would point out that among the considerations and factors that prosecutors will need to consider will be the question of our responsibility to protect children from harm and a recognition of the need to take the child’s best interests into account in the round. As for the Lord Advocate’s guidelines that I am minded to issue to the chief constable and which we are currently discussing with the police, I anticipate that they will seek to articulate the considerations that the police may have regard to in deciding whether it would be necessary to report a particular case to the fiscal instead of taking other action.

Oliver Mundell

I ask this with all due respect, but when Parliament chooses to legislate for things and put them in statute, is it not normal to at least put some parameters or tests into that legislation, as we saw with the domestic abuse legislation? If you feel that there is a need for guidance or to set out some of these tests for the police, is it not better to have in the bill a broad provision relating to the best interests of the child? Would that not make more legislative sense, make things clearer for parents and the police and make the legislation easier for you to operate?

The Lord Advocate

The premise of your question is that the law of assault is unclear, but I would point out that it is applied day and daily by police officers and prosecutors. There is not a problem with the clarity of the law. At the same time, though, a case could be made that removing the defence with the qualification that currently applies would increase that clarity.

As for the framing of guidelines, I issue Lord Advocate’s guidelines to the police on a number of matters. For example, I have defined the framework within which the police may issue recorded police warnings by giving instructions as to when cases must be reported. There is therefore nothing particularly novel or unusual in giving a framework within which the police may act.

I should say that it is a feature of our law that the police are not obliged to report every crime—they report within parameters that I lay down—and prosecutors are not obliged to prosecute every crime. The responsibility of the prosecutors is to take the action that is appropriate in the public interest in any given case.

The Convener

I see that you would like to ask a further question, Mr Mundell, but a couple of people would like to ask supplementary questions. I will let you back in after that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I welcome the report that you have provided to the committee. It will be helpful to our stage 1 deliberations.

I would like to tease something out, based on what you have said in your opening statements and some of your answers to Oliver Mundell. With regard to an allegation that a child has been smacked or has had physical force used on them, what would be the difference for your team the day after the legislation came into effect compared with the day before?

The Lord Advocate

Let us start with the question of investigation. For something to happen, the matter must be brought to the attention of the police and the authorities. If an allegation is made today that a parent has assaulted a child, the police will require to investigate that. They will do that within the framework of the current legal regime. They will, in appropriate circumstances, report that to the procurator fiscal, who will assess the evidence that is available and determine whether there is evidence in law that a crime has been committed. If the procurator fiscal finds that there is, they will then ask what is in the public interest.

After the bill is passed, those processes will be the same. The one thing that will be different is that the qualified defence that is currently available to the allegation of assault will not be part of the law and, therefore, would not form part of the analysis of the legal question that police officers and, ultimately, prosecutors would have to ask themselves.

Anne Marie Hicks might have something to say, based on her experience.

Anne Marie Hicks

Obviously, as the Lord Advocate said, cases that are reported today would still be reported. The key difference is that, at the moment, that defence is available. It is only an available defence; it is not a barrier to cases being prosecuted. Section 51 of the 2003 act sets out factors for the court to consider. The court considers all of those factors and people are convicted in cases in which the circumstances merit it and the defence is not made out. In a sense, the bill simply provides clarity that that defence no longer applies in relation to the use of physical violence as a form of punishment on children. At the moment, that defence might apply or might not, depending on whether the test of the defence is made out.

Fulton MacGregor

I do not know whether you have seen the stage 1 evidence that we have received from Social Work Scotland and Police Scotland, but both those organisations said that they did not think that there would be any change to the way in which they dealt with the process after the law was passed. Do you recognise the view of the police in that regard?

Anne Marie Hicks

In relation to the child protection work that they do, the police have an obligation to investigate any concerns that are brought to their attention about a child. That happens today, it will happen tomorrow and if the bill is passed, it will happen then. If there is evidence of a crime, they will report it.

Obviously, as prosecutors, if there were an available defence of reasonable chastisement or justifiable assault, we would have to consider that as part of our considerations. If that is no longer a defence, that will not be a factor. However, the same public interest considerations would still apply, and we will continue to take account of a lot of the considerations in terms of the defence that exist at the moment, which concern the nature and the gravity of the offence and all the surrounding contexts and circumstances.

Alex Cole-Hamilton

I would like to explore the issue of Lord Advocate’s guidelines. I have come across them once before—it was in my previous professional capacity, when your predecessor issued guidelines on the criminalisation of victims of human trafficking who were coerced into committing criminal acts. On that occasion, we came up against the guidelines because they had not been adhered to by the police, and young people who were victims of trafficking had ended up in Polmont despite the guidelines from your predecessor.

With regard to the bill, when do you anticipate that you will issue guidelines? How will they be disseminated to your coppers on the ground, as it were?

The Lord Advocate

As I said, we are already in discussion with Police Scotland about the shape and parameters of guidelines. That is under active consideration. I certainly intend to issue guidelines as near as possible to the coming into force of the legislation. I issue guidelines to the chief constable, and it is then his responsibility to disseminate the instructions to his officers on the ground. I do not know whether Anne Marie Hicks wants to add anything.

Anne Marie Hicks

We will now have to work with the police on agreeing the content of any guidelines, and then it will be a matter for the police to incorporate them.

Alex Cole-Hamilton

Do you adapt guidelines over time if you ascertain that they are not working properly, or there have been too many prosecutions, or too few? In such cases, do you move guidelines or change them in any way?

The Lord Advocate

I have the power under statute to issue instructions to the chief constable in relation to the reporting of crime, and these matters are kept under review. I do not recognise the idea of there being too many or too few prosecutions. That is not the way that we think about the job that we require to do.

Anne Marie Hicks

A good example is the Lord Advocate’s issued guidelines on liberation. They were amended in the light of the Criminal Justice (Scotland) Act 2016, which introduced new provisions on liberation on undertaking and investigative liberation. The guidelines were updated to take account of that. That is the normal practice that we would adopt.

Alison Harris (Central Scotland) (Con)

I have been listening with interest this morning, and I would like to ask you a couple of questions. During the stage 1 debate, Maree Todd said:

“I assure members that our intention is not to criminalise parents”.—[Official Report, 28 May 2019; c 15.]

Does that intention have any legal force? Would it be, in your view, fair to say that that is a foreseeable outcome and consequence of the bill?

The Lord Advocate

From a prosecutorial point of view, the law is whatever Parliament enacts. We look to the law as it is in common law and in statute.

It is perhaps important to keep in mind that, at present, it is a crime for a parent to assault a child. As I said in my introduction, the law currently treats as criminal parents who assault their children. A qualified defence of reasonable chastisement is currently available, which will no longer be available to parents who assault their children if the bill is passed.

Alison Harris

Can I try to drill down into that? I appreciate that there is the reasonable chastisement element. Does the bill not have potential to criminalise loving and caring parents who use a smack on the back of the hand or the bottom, or a light tap? Does the bill not have potential, ultimately, to criminalise them, because that is going to be deemed to be assault? You are removing the reasonable chastisement clause.

The Lord Advocate

It is not a defence to an allegation of assault that it was motivated by love. The whole facts and circumstances would be taken into account in the context of considering what action was appropriate in the public interest if there was sufficient evidence that a crime had been committed. There is a range of circumstances in which crimes are committed and people offer benign motives. The motivation is not, of itself, a defence, although it might be highly relevant to the decision and how the law responds.

09:45  



The Convener

You are down to ask questions about guidelines and guidance.

Alison Harris

That was part of it. I appreciate that the Lord Advocate mentioned that guidelines would be brought in.

Anne Marie Hicks

I understand that the bill’s intention is to remove the defence so that parents can no longer claim that it is acceptable to use physical violence as a form of corporal punishment of children. The policy driver of the bill is to say that that is no longer acceptable and to change attitudes.

I have read the policy memorandum and my team has been involved in the on-going discussions. We have watched the development of the policy with interest, so I understand that it is not being introduced with a view to increasing the number of people in court; it is about saying that physical violence should not be used as a form of punishment of children.

At its simplest, the policy is about removing the defence, but the Lord Advocate is saying that the use of physical violence as a form of punishment can already be a form of assault. It is today and it would be if the bill is passed; it is just that there would no longer be any statutory defence that could be claimed. The law is being simplified, but we are not setting up a whole new framework. At the moment, people can smack their children and say that that is absolutely fine in every circumstance, but that is not the case under the current law.

Oliver Mundell

You danced around the issue a little bit there. Is it not correct that, when a defence is successfully established, that is, in effect, saying that a crime has not been committed?

The Lord Advocate

Yes.

Oliver Mundell

So, by removing the defence, we are creating a new area of behaviour that is criminal. We heard from the Law Society of Scotland, from a professor of law at the University of Dundee and from several law agents that the bill will create a new category of behaviour that is criminal.

The Lord Advocate

Yes. One has to be clear about that. If a defence in law is removed, by definition, there will be conduct for which the defence can currently be successfully invoked for which it could no longer be successfully invoked.

Oliver Mundell

Do you think that, as a matter of policy, it is a good idea to have legislation on the statute books that we do not intend to enforce in all circumstances, most circumstances or some circumstances?

The Lord Advocate

It is a feature of our legal system across the board that, when there is sufficient evidence that a crime has been committed, prosecutors assess what is the appropriate response in the public interest. We see that in all areas of criminality.

In our system, we do not prosecute every case that is reported to us, and we are not obliged to do so. There is a range of possible responses, which include diversion from prosecution, a range of direct measures and, ultimately, the option of taking no action. The same principles are applied by prosecutors every day across the wide spectrum of cases that are reported to them.

Alex Cole-Hamilton

One of the concerns that critics of the bill voice is that it will result in the criminalisation of hundreds of parents for normal parenting behaviour. That presupposes that the legal defence is being used hundreds of times. Is that accurate?

The Lord Advocate

I have no statistical way of answering that question. I do not have any data that would allow me to give a figure. It is unknown, in the true sense, whether the bill would result in an increase in cases being reported. New legislation, with the attendant publicity around it, might result in an increase in reporting, partly because attitudes change and people are sensitised to behaviour that they might not otherwise have reported. At the same time, it might have an impact in changing behaviours in another direction. The question of whether more cases would be reported remains to be seen.

Anne Marie Hicks

The international experience of where legislation to ban the physical punishment of children has been introduced elsewhere suggests that we would not see significant increases in prosecution, but it remains to be seen what the effect would be on the number of cases that are reported.

If I can give a parallel example from my experience of dealing with domestic abuse, when the law changes and there is greater public awareness of behaviours that are not acceptable, members of the public might involve the authorities more. We have certainly seen that in the context of domestic abuse—neighbours and other people have picked up the phone to the police to report things that, 20 or 30 years ago, might have been overlooked as just domestic matters and were maybe not reported.

We have seen that happen in some of our cases, when members of the public have intervened and called the police when something has happened in public. There might be an increase in reporting if there is greater public awareness of the issue. However, it has been made really clear that the policy intent of the bill is not all about prosecution or the criminal law; it is about saying, “This is not an acceptable way to chastise your children.”

The Convener

A couple of members are signalling that they have brief supplementaries.

Oliver Mundell

Mine is not a supplementary.

Fulton MacGregor

There has been a lot of talk during our consideration of the bill about a possible increase in the criminalisation of parents. The evidence does not point to that, although I know that it is difficult for you to give a view on that. Do you agree that our biggest challenge from a prosecution point of view is prosecuting really terrible offences against children rather than worrying about whether the bill would lead to an increase in prosecutions of parents?

The Lord Advocate

Prosecutors deal with a wide range of offending, from the most serious to the other end of the scale. That is why, as I indicated in my opening statement, we are focused on taking action that is appropriate and proportionate to the particular circumstances of the case that comes before the prosecutor. We can all assess the relative gravity and seriousness of the different types of criminality that we have to deal with, and prosecutors respond in a way that reflects that.

Rhoda Grant

You have mentioned a number of times that, when decisions are taken about whether to prosecute, you look at what would be in the public interest. I want to push you a wee bit on where that falls. What would you consider to be in the public interest and what would you consider not to be in the public interest? Can you give us examples to illustrate that?

The Lord Advocate

The Scottish prosecution code, which is a publicly available document, sets out factors that, depending on the circumstances, will inform the consideration of the public interest. Unsurprisingly, it includes

“The nature and gravity of the offence”

and

“The impact of the offence on the victim”.

Harm, which Mr Mundell asked about, is a consideration that would come into play in that regard.

Other factors that are considered are

“The age, background and personal circumstances of the accused”

and of the victim, and

“The motive for the crime”,

which relates to the issue that Ms Harris raised.

The code sets out more detail under each of the public interest factors that are identified. Those factors will apply in relation to any report of any crime. Prosecutors are well used to applying them, and they do so currently when cases involving alleged assaults by parents on children are brought to their attention.

Anne Marie Hicks

In preparation for today’s meeting, we looked at a few of the cases from last year in which we took no action or took action other than prosecution. One case involved an assault by a mother on her 10-year-old daughter who came home late and had not answered her calls. The assault was a punishment for what was deemed to be bad behaviour. The accused had no previous convictions and there were mental health issues. We had information about social work involvement with the family. Once we had full information on the background, we decided that social work diversion was appropriate, as it would enable social work to work with the family on some of the issues.

We had other cases with similar reported behaviour towards children, in which it was felt that diversion was not necessary, because a framework of support was already in place. We were satisfied that the police were working with social work and that there would be no public interest in prosecuting.

Another case involved an assault on a nine-year-old that arose after a family argument one morning, at a time of great pressure and stress. The parent was working and there was a lot of pressure on the family at the time. Again, we received further information about other assistance that the family were getting through social work and other family members, and we were satisfied that no action needed to be taken.

That is the kind of information that we would look to the police to give us. As well as getting information about the incident, we would want to find out about the background and would want to know whether the parent had ever behaved in that way before or whether the incident took place in the context of domestic abuse. Sadly—this is not surprising—quite a number of such cases take place in that environment. As with other crimes, we would want to look at all the circumstances, including any pressures that the parent was under and any factors that were relevant to them. In determining what is in the public interest, we do not look through the narrow lens of the individual act; we take account of the full context and circumstances of the behaviour.

The Lord Advocate

Particularly at that end of the spectrum, when one is considering whether the public interest is best served by some form of diversion or support rather than a prosecutorial option, as Anne Marie Hicks has said, that is one of the considerations.

At the same time, we have a string of examples of cases in which the balance went the other way: when the circumstances and the particular nature of the case were looked at, as well as the full background and context of the act, a decision was made to prosecute the case. We have a number of examples of those cases, too, but, as Anne Marie Hicks has said, the important point is that, as part of their professional practice, prosecutors routinely consider the appropriate course to take to respond to a particular report of an alleged crime, assuming that there is sufficient evidence to justify action. In this context—as in others—we will look at all the relevant factors.

Rhoda Grant

Given child protection guidance and regulation, I assume that, if a case came to be prosecuted, social work would already be involved. Is your decision influenced by whether or not social workers have taken action? For example, if they thought that the child was in danger, they might have taken them into care and removed them from the family home, or they might be working with the family. Do you look closely at such things before you decide how to act?

10:00  



Anne Marie Hicks

We would want to know what involvement social work might have had, if any, and whether any on-going concerns or previous behaviour had been reported. Those are relevant to the context. One of the factors that we consider is the risk of reoffending, which is a clear public interest consideration. We would know about the involvement of social work, but we would not think, “Social work has done this, so we will do that.” We would look at the full circumstances of the incident.

There are cases in which the police properly involve social work, because they are required to do so, and social work will take a view and say, for example, “We are content as far as the incident is concerned, and we see no need for on-going work with the family.” We have seen that in a number of cases. We just want a full picture, so that we understand the situation.

Oliver Mundell

Going back to earlier comments, I note that, in our system, the parameters of the common-law crime of assault are in effect set by case law. Is there any issue with the fact that, because of this particular defence, there is perhaps a sparsity of case law on cases involving minor or mild physical force, as such cases have probably not been tested or fully explored? Should we consider that issue?

The Lord Advocate

I am not aware of any particular practical difficulties in the application of the law.

Anne Marie Hicks

You are right in the sense that the case law on reasonable chastisement tends to predate the 2003 act, but even if the purpose of the bill is to say that that is no longer a defence and to remove it, the case law on assault will still apply. A sheriff will have to consider the evidence and decide whether what happened constitutes a crime and whether that has been proved beyond reasonable doubt. Those considerations will still apply. If a sheriff listens to what has happened and says that it does not constitute an assault in law, there will not be a conviction.

Oliver Mundell

Do you recognise the possibility that, in the absence of any thresholds in the bill, the courts might come up with their own new tests? In effect, they could say that your decision to prosecute was not, in their view, in the public interest.

Anne Marie Hicks

I do not think that they could come up with a new test in law. As we have occasionally seen, it is always open to the courts to criticise a decision to prosecute. It is obviously for them to determine on the basis of the evidence whether a crime has been committed, and if they believe that it has, whether that has been proved beyond reasonable doubt. As the decision maker in a summary case, they would have to make that decision.

Moreover, if the courts did not think that it had been appropriate to prosecute the case, they could reflect that in sentencing, which is also a matter for them. I do not think that there will be an array of new tests around the law of assault. We already prosecute cases of parental chastisement, which amounts to assault in the courts, so they are used to dealing with that.

Oliver Mundell

The common law continues to evolve and develop, and a number of things that this Parliament now takes pride in, such as law regarding relations between married people, have developed through case law; they were not developed through statute. Surely it is possible that common law will continue to develop in this area, and that the courts might refine what they consider to be parental assault of a child in the context of the parental rights and responsibilities in other statutes.

The Lord Advocate

It would be wrong for me to pre-empt the natural development of the law, but the legal test for an assault is straightforward. It is an attack on the person of another with the relevant mens rea, or mental state for committing a crime, and courts are used to applying those tests in a range of circumstances.

As Anne Marie Hicks has said, there will be cases where a court concludes that, on the basis of the evidence that it has heard, there was no crime. That happens across the board. Prosecutors assess cases and take them to court, and on occasion the evidence does not support the charge. Indeed, as Anne Marie has said, there are sometimes cases where, even though a crime has been committed, the court is critical of the case having been brought by the prosecutor.

It is our responsibility to take the cases that we consider it right to take in the public interest, but sheriffs are entitled to comment. At the end of the day, a sheriff will reflect their assessment of the case in any sentence that is imposed.

Alex Cole-Hamilton

I wonder whether Oliver Mundell’s concerns about the lack of case law and thresholds on this issue go some way towards answering my earlier question about scale. There is not, as he has suggested, a great deal to go on; the legal defence is not regularly exercised, and courts are not often asked to sit in judgment of loving physical chastisement, which critics of the bill would describe as being reasonable. It is not something that comes up in court very often. Oliver Mundell might be worried about the absence of case law, but it strikes me that the matter just does not come up very much.

Anne Marie Hicks

In our written evidence, we provide some data on the number of cases that we have had. We looked at a three-month period from three years ago and increased that to create an estimate for a 12-month period, and we estimated that the number of cases prosecuted was fewer than 500 for the whole year, including assaults on children to injury, no injury and severe injury. On any reading, the numbers are small. That is within a framework where we have the statutory defence, but even when we take that into account, the numbers are small. We will have to wait and see whether there is any increase.

Alex Cole-Hamilton

Do you have data on how many of those people were acquitted on the basis of the defence of reasonable punishment?

Anne Marie Hicks

No. To get that, we would have to go through every individual case. We can pull cases based on the charge and see that they involved a parent and that the victim was a child, but we could not go into that sort of detail without a thorough manual research exercise.

Alex Cole-Hamilton

I understand.

The Convener

Okay. Everyone looks content. I thank the witnesses very much for their evidence this morning.

The committee’s next meeting will be on Thursday 13 June, when we will take evidence from Engender on its shadow report on the United Nations Convention on the Elimination of all Forms of Discrimination Against Women.

10:08 Meeting continued in private until 10:43.  



Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on changes

Documents with the changes considered at this meeting:

Video Thumbnail Preview PNG

First meeting on changes transcript

The Convener

Item 2 is stage 2 consideration of the Children (Equal Protection from Assault) (Scotland) Bill. I welcome John Finnie, the member in charge of the bill, and Maree Todd, the Minister for Children and Young People. We are also joined by Adam Tomkins MSP and Liam Kerr MSP. You are all very welcome.

Everyone should have a copy of the bill as introduced, the marshalled list of amendments, which was published on Monday, and the groupings of amendments, which sets out the amendments in the order in which they will be debated.

Adam Tomkins (Glasgow) (Con)

On a point of clarification, convener, I lodged two amendments to the bill, which I understand that you decided not to select for debate. The only reason that I have been given for that is that you took the decision that the amendments were inadmissible. However, you did not give reasons why you thought that. Will you explain why my amendments were ruled inadmissible?

The Convener

I thank the member. Standing orders rule 9.10.4 states that it is for the convener of a committee to

“determine any dispute as to whether an amendment of which the Clerk has been given notice is admissible.”

Rule 9.10.5 and part 4 of “Guidance on Public Bills” relate to the criteria for admissibility. One criterion is that the amendment must be consistent with

“the general principles of the Bill”.

Another is that it must be “relevant to the Bill”. Having looked carefully at the amendments that you lodged, I did not consider that they met those criteria. I therefore considered them to be inadmissible.

It is for the Presiding Officer to rule on admissibility at stage 3.

Adam Tomkins

I am grateful for that explanation, which I understand. However, I do not understand why my amendments were deemed to be contrary to the general principles of the bill. The general principles of the bill are set out in the policy memorandum that was published when the bill was published, which says that the purpose of the bill is

“to help bring to an end the physical punishment of children”.

That view was endorsed and agreed with by the committee in its stage 1 report. In paragraph 4, the committee said:

“The Bill’s purpose is ... to discourage the use of physical punishment.”

The phrase “physical punishment”, therefore, appears in paragraph 4 of the stage 1 report and in paragraph 4 of the policy memorandum.

My amendments were designed to ensure that “assault”, for the purposes of section 1 of the bill, means only physical attack. Currently, in Scots law, someone does not have to physically attack a person in order to assault them. The bill will therefore criminalise behaviour of parents, carers and guardians of children that the proponents of the bill and this committee say is not intended to be criminalised.

My amendments sought to give clarity to the meaning of “assault”, for the purposes of the bill, to achieve precisely the policy objective that is set out in paragraph 4 of the policy memorandum. That is why, with respect, I do not understand how the amendments could be ruled to be contrary to the general principles of the bill.

The Convener

It is a long-standing convention that the Presiding Officer and conveners do not explain their decisions on admissibility. However, to be helpful, I note that we will consider a number of amendments today that will give members the opportunity to debate, in full, the issues that the bill raises.

Of course, amendments that were ruled inadmissible at stage 2 can be lodged again at stage 3, when it will be for the Presiding Officer to determine admissibility.

I consider the matter closed. Let us move on.

There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment and to speak to all other amendments in the group. Members who have not lodged amendments in the group but wish to speak should indicate that by catching my attention in the usual way. I ask that anyone who does that be succinct and ensure that their contribution is relevant to the amendment or amendments being debated.

I remind members that stage 2 is not a rehearsal of arguments on the general principles of the bill. Members will be able to comment again on the merits or otherwise of the bill in the stage 3 debate, in the chamber.

The standing orders give the member in charge of a bill and any Scottish minister the right to speak on any amendment. Therefore, I will invite the minister and John Finnie to contribute to each debate before I move to the winding-up speech.

The debate on each group will be concluded by my inviting the member who moved the first amendment in the group to wind up. Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or withdraw it. If they wish to press it, I will put the question on that amendment.

If a member wishes to withdraw their amendment after it has been moved, they must seek the committee’s agreement to do so. If any committee member objects, the committee will immediately move to vote on the amendment. If any member does not want to move their amendment when called, they should say, “Not moved.” Please note that any other MSP may move the amendment. If no one moves it, I will immediately call the next amendment on the marshalled list.

Only committee members are allowed to vote, and voting in a division will be by a show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote.

The committee is required to indicate formally that it has considered and agreed each section of and schedule to the bill, so I will put the question on each section at the appropriate point.

Section 1—Abolition of defence of reasonable chastisement

The Convener

Amendment 1, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell (Dumfriesshire) (Con)

Amendment 1 is designed to be a simple amendment that seeks to draw together some points of consensus that emerged during the stage 1 evidence and to give reassurance to those in the Parliament and the public who continue to have concerns about the bill. I am particularly grateful to Mary Fee and Christine Grahame for their support for the amendment.

When putting the amendment together, I spent a considerable amount of time speaking to other members and interested stakeholders in order to capture some of the practice in Ireland and New Zealand, which were examples that came up frequently during stage 1 evidence.

When lodging the amendment, I became aware that there was considerable difficulty in finding a form of words that fitted the clerks’ view of the scope of the bill. I am now concerned about paragraph (c)(ii) in the proposed new subsection, as there is a legitimate point about whether there is an existing explicit parental responsibility to prevent a

“child from committing a criminal offence.”

That point has come to light since I lodged amendment 1, so I certainly want to revisit the amendment’s drafting. There are also other areas where the language could be tightened up.

I am interested in hearing other members’ thoughts on the amendment. I am not necessarily minded to press it myself, but I am interested in hearing views and building consensus around the principles that the best interests of the child should be taken into account, that there are on-going issues regarding restraint and that there are recognised parental responsibilities for maintaining a child’s safety and wellbeing.

I move amendment 1.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I have a couple of questions about amendment 1. One is about the line that says

“prevent the child from committing a criminal offence.”

I am looking for clarity about what that means. Most of the evidence that we took said that the removal of the defence of reasonable chastisement would provide clarity in the law. I am uncertain about amendment 1 because I think that it would take that clarity away again.

I also want to ask about the restraint element in paragraph (b). Do the words

“make physical contact with the child”

include forms of physical punishment, or are they purely about restraint? We took a lot of evidence that said that the bill would not affect the ability of parents to protect their children.

Oliver Mundell

The amendment seeks to introduce “for the avoidance of doubt” wording. It would not change the law or what is already in the bill; it would just provide some reassurance. It is not designed to supersede what sits above it. However, I am willing to look at the wording and, potentially, to lodge an amendment at stage 3 to make the intention clearer.

Gail Ross

I thank Oliver Mundell for that. I am pleased to hear him say that he might look again at the wording. I would be happy with that.

Mary Fee (West Scotland) (Lab)

Good morning, everyone. I will say a few brief words in support of Oliver Mundell’s amendment 1. It reflects the concerns that we heard from a number of witnesses, throughout the evidence sessions, about the removal of a person’s ability to use parental responsibility to protect their child. It would go a long way towards allaying some of the concerns that were raised throughout the evidence sessions, and for that reason I am happy to support it.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I thank Oliver Mundell for reaching out to Opposition members in discussions about potential amendments for stage 2. I am sorry to say that I cannot support amendment 1, and I will unpack my reasons for that.

A word that we heard consistently throughout stage 1 was “clarity”. We heard about the need for clarity and the fact that the landscape around physical punishment in Scotland is not clear. A large number of members of the public believe that it is already illegal to physically punish their children and are surprised when we tell them that it is not. The Scottish Parliament previously legislated on the matter in 2003, and the architecture around that involved only the prohibition of head shocks, shaking and the use of implements.

The bill is elegant because it draws a line under the equation, but amendment 1 would reverse the clarity that the bill affords.

Adam Tomkins

The member says that the bill brings clarity because it draws a line under the physical punishment of children—I think that that is what he just said. Does he not accept that “assault”, which is the word that is used in section 1, is not restricted to the physical punishment of children and that the bill criminalises actions with regard to children that go well beyond physical punishment? I am sure that that is inadvertent, although it would be interesting to know whether it is deliberate. It is not what the policy memorandum says, but it is what the bill does.

The member says that he is seeking clarity, and I believe that he is. Let us all agree that clarity in the law—particularly in the criminal law—is a good thing. We need to clarify exactly what the bill seeks to criminalise. If it seeks to criminalise physical punishment, it needs to be amended to reflect that. As it stands, it is not clear.

Alex Cole-Hamilton

I am grateful to the member for his intervention, but I do not accept that premise at all. We are talking about the removal of a legal defence that used also to apply to the right of a husband to physically punish his wife or his servants. This is about a cultural shift in Scotland. We are not talking about the criminalisation of parents. We heard international examples from a range of witnesses, and the 54 countries that have already taken the step have not seen the mass criminalisation of parents, so I fundamentally do not accept that premise.

Oliver Mundell said that his amendment parallels the legislation on the subject in New Zealand, but his amendment and the New Zealand legislation diverge in that the law in New Zealand makes it explicit that physical punishment is not in the child’s best interests.

Oliver Mundell

The member might be interested to know that I tried to lodge a version of my amendment with wording that was similar to that, but I was told by the legislation team that they feel that the bill already rules out the possibility of physical punishment, so there is no need for it to be restated. I do not know what more I could do to satisfy his concerns, certainly at this stage.

Alex Cole-Hamilton

I am grateful for the member’s clarification on that point. It is very helpful.

When the member and I discussed potential stage 2 amendments—I am keen to foster consensus around the bill, so I welcomed his approach to that—we talked about the best interests principle, which is something that we should all agree on. It is a creature of Scots law and of international treaties, and it states that, in everything that we do, be it in public policy development or in legal judgments, we should always act with the best interests of children at heart.

To that end, I expected an amendment to be forthcoming that was more along the lines that, at the point of referral by a social worker or police officer—

09:15  



Oliver Mundell

Will the member take an intervention on that point?

Alex Cole-Hamilton

I will do so in a minute. First, let me finish my point.

The amendment might have said that, at the point of referral by police or social work, the Crown Office might offer a judgment as to whether it is in the child’s best interests to launch formal criminal proceedings against the parents. Perhaps a constituency or cross-stakeholder consensus could be built around that, if such clarity is needed in the bill. However, the amendment as it is worded diminishes that clarity. It almost suggests that, if a parent were to argue that the physical punishment of their child was done in the best interests of the child, it might represent a new quasi-legal defence.

I have another anxiety to discuss, but I will let in Oliver Mundell first.

Oliver Mundell

Again, I point out to the member that I tried that approach. I included a best interests test, which was my preferred approach. However, I was told that the bill is too narrow in scope and cannot give directions to courts or prosecutors. Given the member’s support for and interest in the matter, perhaps the Presiding Officer will look at the issue at a later stage.

Alex Cole-Hamilton

I am grateful for that clarification.

I have another anxiety, in addition to the fact that the amendment undermines the clarity that the bill affords by arguably reinstating a nuanced route whereby a parent might justify the physical punishment of their child by reference to best interests. Perhaps the member can offer some clarity here. I was slightly alarmed to see that paragraph (c) of the proposed new subsection links the ability to

“fulfil the person’s responsibilities (whether parental responsibilities or otherwise)”

to the wording in sub-paragraph (ii), which refers to the responsibility to

“prevent the child from committing a criminal offence.”

From my reading of that wording, I take it that a law enforcement officer might be swept up in that. Arguably, we might accidentally create a situation in which it suddenly became okay for police officers to physically punish children in the street. Has the member considered that as an unintended consequence of his amendment?

The Convener

Before Oliver Mundell replies, I note that he will have the opportunity to wind up, so we should maybe keep moving.

Oliver Mundell

I will pick up those points in my winding-up speech, convener.

Alex Cole-Hamilton

For all the reasons that I have set out, I am afraid that I cannot support amendment 1.

The Convener

Does Fulton MacGregor still want to come in?

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Gail Ross and Alex Cole-Hamilton have covered the main points that I was going to make. I think that the intention behind the amendment is correct, and, following quite a heated stage 1 debate, I commend Oliver Mundell for lodging it. The fact that the amendment has the backing of Mary Fee speaks to its good intentions. However, the briefing from Barnardo’s Scotland, Children 1st and NSPCC Scotland—those organisations are all experts in this field and have given evidence throughout the stage 1 process—shows that they, like me, have grave concerns about amendment 1.

I will not go over the points that were made by Gail Ross and Alex Cole-Hamilton. I simply say that the amendment would not bring clarity to the bill. It is also really concerning that we could find ourselves in a situation in which, legally, parents could argue that physical punishment is in their child’s best interests.

For those reasons, I am not able to support amendment 1.

The Minister for Children and Young People (Maree Todd)

I welcome the opportunity to speak for the Scottish Government in a very important debate for all children in Scotland.

We cannot support amendment 1 for several reasons. First, it purports to provide that

“nothing in this section affects the ability of a person having charge or care of a child to ... act in the best interests of the child”.

It is not clear from that exactly who would decide whether or not the actions of a parent or carer were in the best interests of the child.

Oliver Mundell

I understand the point that the minister is trying to make, but given that the bill refers to the removal of a defence, it is pretty clear that those would be considerations for the court—which they would be anyway, as is clear from the evidence that we received from the Lord Advocate. Amendment 1 simply seeks to put

“the best interests of the child”

in the text of the bill.

Maree Todd

If amendment 1 is designed to provide that, in certain unspecified circumstances, a parent or carer could say that they used physical punishment because it was in the child’s best interests, that goes against the bill’s fundamental purpose—which was agreed to at stage 1 by the whole Parliament—which is to give children equal protection from assault.

In addition, section 1 of the Children (Scotland) Act 1995, which constitutes the central provision on parental responsibilities in Scots law, provides that parents have such responsibilities

“only in so far as compliance with this section is practicable and in the interests of the child.”

Oliver Mundell

I thank the minister for giving way again. As I said to Alex Cole-Hamilton, I sought to make reference to the 1995 act in a previous draft of my amendment, but the scope of the bill is such that it was difficult to do so. The matter is worth considering, because section 1 of the 1995 act is Scots law that is well understood by practitioners, lawyers and other people, and a reference to it in the bill might offer a way of satisfying the best interests test in relation to parental responsibilities.

Maree Todd

There is already general provision on parents exercising their responsibilities in the interests of the child. The bill will not, in its impact on existing law, create any uncertainty or doubt that needs to be remedied. Indeed, the bill will not impact on existing law beyond making it clear that physical punishment can never be in a child’s best interests, which is important.

Paragraph (b) of the proposed new subsection that amendment 1 would insert relates to restraint. I appreciate that Mary Fee has taken a strong interest in restraint throughout the passage of the bill. The Scottish Government acknowledges the points that were made in evidence about use of restraint in residential care and education settings. However, in its stage 1 report, the committee carefully considered the issues, under the heading, “Restraint in the home”. The committee concluded, in paragraph 62:

“We do not agree physical punishment is required to protect children from harm. We conclude that the Bill as drafted will not change a parent’s or carer’s ability to restrain a child to keep him or her from harm.”

The Scottish Government agrees with that comment, which is in line with the evidence that the committee received. We do not consider that the bill will stop parents using restraint to protect children from harm. As the Crown Office made clear, such restraint would lack the criminal intent that is needed in order for a person to commit the crime of assault in Scots law. As a result, we consider that limb of the amendment to be unnecessary.

Paragraph (b) would also create uncertainty. It refers to the ability of the parent or carer to

“make physical contact with the child”.

It is not clear whether that could include forms of physical punishment. If it could, the approach—again—goes completely against what the bill is doing and what the Parliament has agreed.

Paragraph (c) refers to the ability to

“fulfil the person’s responsibilities ... to ... maintain the child’s safety and wellbeing or ... prevent the child from committing a criminal offence.”

A fundamental argument for the bill is that physical punishment has a negative impact on children’s welfare. The amendment could be read as meaning that physical punishment could be used to maintain a child’s wellbeing. We reject that approach.

With regard to the responsibility to prevent a child from committing a criminal offence, we reject the idea that physical punishment is the way to prevent a child from stealing, for example. A better approach would be to separate the child from the property and tell the child that stealing is wrong. The evidence shows that physical punishment is not just harmful but ineffective.

All in all, far from removing doubt, amendment 1 would introduce ambiguity, create doubt and reduce the clarity of the law. For all those reasons, I invite Oliver Mundell not to press amendment 1. If the amendment is pressed, I urge the committee to reject it.

John Finnie (Highlands and Islands) (Green)

Oliver Mundell’s amendment 1 begins with the words,

“For the avoidance of doubt”.

I seriously question, and ask committee members to reflect on, whether there is any doubt. I am not convinced that the evidence that the committee has heard can be taken to mean that the bill leaves any doubt, in which case Mr Mundell’s provision is liable to do more harm than good, by adding material that could cause difficulties in interpretation.

Oliver Mundell

Does John Finnie accept that the fact that the Lord Advocate is going to address a number of points in guidance suggests that there is at least some doubt about how the public interest test would work? Does he also accept that, far from creating new provisions, the proposals in the amendment—with which, I accept, there are some problems—would take the considerations of prosecutors in court and move them forward in the process by putting them in the bill?

John Finnie

No, I do not accept that. I will talk about the Lord Advocate in a moment, but I will say that it is standard practice for the Lord Advocate to give the police guidance on a number of issues. We know that from what has happened with regard to legislation that we have had in recent times.

It is hard to see how anyone could apply the additional tests that are set out in the amendment in a consistent manner, given how vague and subjective they are. Evidence that the committee heard from the Lord Advocate, the Crown Office and Procurator Fiscal Service, the Law Society of Scotland and police and social work representatives all stated that the bill will simplify the legal position. Amendment 1 is likely, therefore, to have the reverse effect to what is intended: it will introduce doubt, rather than dispel it. For example, what would constitute

“the best interests of the child”?

How would physical restraint be judged and assessed? How broad would the idea of preventing a child from committing a criminal offence be?

The committee heard plenty of evidence that did not support the inclusion of such things in the bill. The committee heard that prosecutors will continue to consider the best interests of the child as part of the public interest test, and that relevant matters are already included in the prosecution code as things to be taken into account when investigating and prosecuting cases of assault on a child.

In terms of the proposed new subsections (b) and (c), which attempt to clarify examples of physical contact and responsibilities, I do not consider it to be necessary to set out such matters in the bill, because the established common-law offence of assault would apply, which brings with it consideration of the requisite criminal intent, along with consideration of the facts and circumstances of the individual case.

Those suggested provisions also raise issues that are relevant to the prosecutorial code, guidelines and so on, therefore the defence that is being abolished would not come into play. Again, that could confuse matters rather than clarifying them. The Lord Advocate talked to the committee about the prosecution code, which is a public document. He said that it includes factors that may inform the consideration of the public interest, including

“The nature and gravity of the offence ... The impact of the offence on the victim ... The age, background and personal circumstances of the accused”

and of the victim, and

“The motive for the crime”.

He also said:

“The code sets out more detail under each of the public interest factors that are identified. Those factors will apply in relation to any report of any crime. Prosecutors are well used to applying them, and they do so currently when cases involving alleged assaults by parents on children are brought to their attention.”

In response to a question from Oliver Mundell, the Lord Advocate said:

“The premise of your question is that the law of assault is unclear, but I would point out that it is applied daily by police officers and prosecutors. There is not a problem with the clarity of the law. At the same time, though, a case could be made that removing the defence with the qualification that currently applies would increase that clarity.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 13-14, 7.]

I conclude by reiterating that amendment 1 addresses permissible physical restraint of children, apparently in connection with their safety and prevention of self-harm. That is not the focus of the bill, which deals with the use of force against a child in punishment. There is no policy intention to legislate on the circumstances around permissible physical restraint of children, or adults.

I ask the committee to reject amendment 1, which is in the name of Oliver Mundell.

Oliver Mundell

This has been a helpful discussion, in part. I do not accept that the bill, as drafted, is free from doubt. I think that there are legitimate and on-going concerns. I am concerned about the suggestion that it is the prosecution code that sets the law of the land. It is not; the law of the land is what is in statute, and how that is interpreted by the courts.

Notwithstanding issues around the wording of amendment 1, it is difficult to see how anyone could object to the best interests of the child being taken into consideration. I do not think that anyone is objecting to that, so I do not see what possible objection there can be to including those words in the bill.

09:30  



Alex Cole-Hamilton

Nobody would disagree with statement that the best interests of the child are paramount and that we should take them into account. However, in a way, amendment 1 twists that slightly to suggest that

“nothing in this section affects the ability of a person having charge or care of a child to—

(a) act in the best interests of the child”.

It almost implies that, occasionally, a level of physical intervention with a child might be in the child’s best interests, which flies in the face of any legal definition of “best interests of the child”.

Oliver Mundell

With or without being offensive, I note that the clumsy wording that Alex Cole-Hamilton just used sums up my point. There are occasions when physical intervention can be in the best interests of the child. Having accepted the decision of Parliament at stage 1, I do not seek to say that physical punishment is in the best interests of the child, but there are situations in which physical intervention is in their best interests, and it is trying to—

Gail Ross

I am getting a bit confused. Will you explain the difference between physical intervention and physical punishment?

Oliver Mundell

Physical intervention might be forceful restraint—for example, holding a child’s arm back, which happens regularly. What is difficult in the case of the bill—a point that I have been trying to make right from the start—is that the law of assault is a broad offence, as the COPFS confirmed in its written evidence. It is something that Pamela Ferguson, who is the chair in Scots law at the University of Dundee, has worked for the Scottish Law Commission and has drafted—

Maree Todd

We do not consider that the bill would stop parents using restraint to protect children from harm. As I have said, and as the Crown Office has made clear, such restraint lacks criminal intent, which is needed in Scots law for the crime of assault.

Oliver Mundell

Will the minister clarify when criminal intent is considered in our legal process? At what point in the process does that question arise?

Maree Todd

The law around assault is absolutely—

Oliver Mundell

That is not the question that I asked.

The Convener

Mr Mundell, I remind you that you are winding up now. The minister is not giving a speech.

Oliver Mundell

I apologise. Minister, I will let you intervene again to clarify when the issue of criminal intent comes up in the Scottish legal process.

Maree Todd

The prosecution code, which is a publicly available document, as John Finnie said, takes a number of things into account, including

“The nature and gravity of the offence ... The impact of the offence on the victim ... The age, background and personal circumstances of the accused”

and

“The motive for the crime”.

Oliver Mundell

So, by the time a case gets to prosecutors for them to decide whether to prosecute, people have already been the subject of criminal investigation and could be the subject of criminal allegations. I want to be clear—for the avoidance of doubt; this is where amendment 1 comes from—that exercise of parental rights, which exist in common law and statute, will not be confused with assault. Assault can mean shouting aggressively at someone or acting in a threatening manner, which are subjective things. I do not deny that there is clarity around the law of assault, but I believe that it is a wide category of behaviour to be mixed with the concept of physical punishment.

The issue for me here is about trying to draw the distinctions up front, so that what is and is not considered to be relevant behaviour for the purposes of the bill is clear to members of the public, police officers, social workers and people who—with respect—do not look at the prosecution code.

The Convener

We want to have a full debate on everything. We are now 35 minutes into the meeting, so we have given amendment 1 a good airing. Will you draw your remarks to a close?

Oliver Mundell

I will draw my remarks to a close, because there is not a lot to say in addition to that point. I do not intend to press amendment 1, because I recognise that there are issues with its wording. I hope that other members of the committee will afford me the opportunity to explore that further and to lodge a new version of the amendment at stage 3.

Amendment 1, by agreement, withdrawn.

The Convener

The question is, that section 1 be agreed to.

Oliver Mundell

For clarification, convener, is it possible to say no? I still have fundamental problems with section 1, which I want to register.

Annie Wells (Glasgow) (Con)

I do, too.

The Convener

Yes, you absolutely can.

Section 1 agreed to.

Section 2—Duty of Scottish Ministers to raise awareness

The Convener

Amendment 9, in the name of Liam Kerr, is in a group on its own.

Liam Kerr (North East Scotland) (Con)

I am grateful to the committee for giving me the opportunity to speak to amendment 9.

Members of the committee will be well aware of my views on smacking: I do not believe that it is in the interests of the child. I do not resile from that position at all. However, I have serious concerns about the bill’s implications and possible unintended consequences, particularly having listened to Mr Mundell’s well-made comments about amendment 1. I—and, I suspect, members of the committee—do not want to see good parents criminalised and subject to the might of the state for inadvertent transgressions, which is a particular risk where there is ignorance of the law.

I acknowledge that section 2 makes provision for raising awareness of the change in the law. My view is that section 2 is not strong enough and would represent a missed opportunity if it were to be left as it is. We should take this opportunity to raise awareness of the parenting practices and alternatives to smacking that I have no doubt that all committee members wish to see.

Amendment 9 reflects the view that it is imperative that people know and understand the limitations that are placed on their behaviour, not only to promote the culture change that was referred to earlier but so that people are not inadvertently criminalised.

To that end, amendment 9 would mandate the Government to promote awareness of, inter alia, the existing protections from assault that children have, the rights and responsibilities of a parent, and good parenting practices, including alternatives to any form of violence or smacking.

Our goal should be to help parents to provide the best environment for their children, by furnishing parents with the knowledge and understanding that they need if they are to do so. That is what amendment 9 seeks to deliver, and I hope that the committee will support it.

I move amendment 9.

Alex Cole-Hamilton

I have some sympathy with what the member is trying to do with amendment 9, but I do not think that the matter that he raises is for primary legislation. It would be better addressed in the guidance around implementation.

We have learned a lot from international examples, given that 54 countries have gone before us in this regard. I remind members of the powerful testimony of former Irish senator Jillian van Turnhout. She told us that the amendment that she got through the Dáil, which ended physical punishment in Ireland, was just an amendment to a bill, with no budget attached to it. However, it worked. Parents changed. They understood that the legal position had been made clear and that they had to adopt different strategies for parenting.

Therefore, I do not think that we need to legislate in the bill for the matters that Liam Kerr talked about, not least because—and I am sure that this is not his intention—amendment 9 lacks definition. For example, it refers to “good parenting practices”; a phrase such as that in a bill demands clarification of what it means, which runs the risk of our having to attach to primary legislation pages and pages of academic text on what is meant by “good parenting practices”.

Although I understand Liam Kerr’s good intentions, I will not support amendment 9, because I do not think that the bill itself is the place for such provisions.

Fulton MacGregor

I, too, think that Liam Kerr has the right intentions. He is probably trying to allay fears, and the biggest fear that folk out there have—and that people have raised with us—is that there will be unnecessary criminalisation. However, I say to Liam Kerr, as he is not on the committee, that we heard a lot of evidence on the subject and received a lot of reassurance that, given the child protection processes that are already in place, the risk of unnecessary criminalisation is extremely low. I therefore think that the amendment is unnecessary.

The amendment does not have the scope that Alex Cole-Hamilton talked about, and I note that in the Irish model, not much publication of information was needed.

Liam Kerr

The question that I throw back to Mr MacGregor is: what if you are wrong and the risk of criminalisation is not, in fact, low? Surely we must take this opportunity to ensure that we reduce the risk as far as possible and do not leave it to chance.

Fulton MacGregor

I thank the member for his intervention. I do not think that the amendment would have that effect, and—

Alex Cole-Hamilton

Will Fulton MacGregor take an intervention?

Fulton MacGregor

Can I finish my answer to Liam Kerr first? [Laughter.] I will take the intervention in a moment.

I do not think that the amendment would have that effect. We have to base legislation on what we hear, and the evidence that we have heard in this regard was overwhelming. As a committee member, I am satisfied that the risk of unnecessary criminalisation is very low.

I will take Alex Cole-Hamilton’s intervention now.

Alex Cole-Hamilton

Sorry—that was rather impetuous of me. I am grateful to the member for taking the intervention. Does he agree that there is no risk that people will not understand that physically punishing their child will now be an offence, because that is written in 80ft letters on Technicolor neon signs by every group that opposes the bill every time it is brought up in the public domain?

Fulton MacGregor

Yes. I also return to the point, which we have talked about a lot in the committee, that it is already an offence. The bill removes a—

Oliver Mundell

Will Mr MacGregor take an intervention?

Fulton MacGregor

Okay.

Oliver Mundell

It is a relatively friendly one. Given the member’s experience before he came into this place, does he recognise the challenges that many parents face and agree that the sharing of best practice and advice may be helpful for some people? Very few people set out to deliberately harm their children, but we heard in evidence—and I have heard in the interactions that I have had around the bill—that there are people who have, for want of a better word, resorted to smacking because they have struggled to cope. Does he recognise that there might be a role for further guidance on good parenting practices?

Fulton MacGregor

I recognise that but, as I have consistently said during stage 1 and as we have heard from many other members and agencies, the bill does not change that. I have great faith in the agencies and the child protection processes that we have in place. The bill has allowed a conversation on how we support families who are struggling, and I do not think that anything in the amendment changes that. I take Oliver Mundell’s point, but I cannot support amendment 9.

Maree Todd

Amendment 9 relates to the duty on the Scottish ministers in section 2 to raise awareness, and it would lay down a list of areas to be covered by that duty.

I say to Liam Kerr that the list of areas is slightly illogical. It includes the rule of law and the defence of reasonable chastisement, which would be repealed by the bill. It also refers to section 51 of the Criminal Justice (Scotland) Act 2003, on the physical punishment of children, which would also be repealed by the bill. Why would ministers promote the old law, which is being repealed?

I am also uncertain about why the amendment refers to

“parental responsibilities under the Children (Scotland) Act 1995”.

The 1995 act makes detailed provision on parental responsibilities but, as was mentioned in the debate on the previous group, they are not being changed by the bill.

09:45  



I am also concerned about the proposal that the Scottish Government should be required to produce formal statutory guidance on “good parenting practices”. Our message has always been that we want to support mothers and fathers, not dictate to them how to be good parents. However, I agree that providing support for parents includes raising awareness of positive parenting practices, which do not include physical punishment. We already provide that kind of information through public resources and, as required by the bill, we will work with key partners and stakeholders to build on that. Part of the aim must be to support families to prevent or reduce flashpoints, so that interventions are not needed at all. That might not always be possible, but it is a reasonable objective.

The Scottish Government recognises the need for public awareness and will comply with section 2 of the bill. When doing that, we will consult our implementation group and take account of points that the committee made in the stage 1 report. However, amendment 9 seems to lay down requirements that, given the fundamental purpose of the bill, would hinder rather than help awareness raising. If Mr Kerr has concerns about what the public information in that area might focus on, I am happy to meet him. He is welcome to contact my office to make arrangements for that.

I invite Liam Kerr not to press amendment 9. If it is pressed, I urge the committee to reject it.

John Finnie

Although I appreciate Mr Kerr’s intention in moving amendment 9, it is not clear how exactly the amendment would affect section 2. As drafted, section 2 requires Scottish ministers to

“take such steps as they consider appropriate to promote public awareness and understanding about the effect of section 1.”

That is drafted so as to allow the Government to determine what awareness-raising steps would be appropriate. If the amendment is agreed to, the same would apply to the list that it adds. Amendment 9 would require the Scottish Government only to promote “public awareness and understanding” of those things to the extent that it considers appropriate, which could be not at all.

The inclusion of two of the points is unnecessary. Since the rule of law that section 1 refers to is being abolished and the relevant provisions of the 2003 act are being repealed, what is the point in either promoting those things or in promoting public awareness or understanding of them? For the purpose of promoting what the bill does, the extent that those two points need to be explained is already covered by section 2. Section 1 of the bill abolishes the rule of law in common-law provisions and explains what the rule of law is.

Further explanation can be found in paragraph 6 of the explanatory notes and section 51 of the 2003 act. Therefore, I do not consider it necessary to require the Government to promote “awareness and understanding” of those things or to promote them in any other way. Ministers already have a requirement to explain section 1 of the bill, which abolishes and repeals those things.

The other areas that the amendment requires the Government to promote awareness and understanding of are areas that the Government already provides information to parents on, including the 1995 act, which informs Scottish Government policy on relevant matters and will alter to reflect the new legislation. Again, I do not consider it necessary to have those things in the bill.

Moreover, as has been said previously, concepts such as “good parenting practices”, “alternative parenting practices” and “disproportionate violence or assault” lack definition. Does the member have an example of proportionate assault?

I ask committee members to vote against amendment 9 in the name of Liam Kerr.

Liam Kerr

I am grateful to the members and the minister for their comments. Taking it from the top, I will respond to a few of them.

Alex Cole-Hamilton said that these provisions are not for primary legislation. It strikes me that, if we have a weak mandate at section 2, why would we not go further? John Finnie made the point that the Government’s decision could be “not at all”, which is exactly the problem: the Government could decide to do nothing. That concerns me, because, as we have seen, we would have a level of ignorance about what has changed, and people inadvertently being criminalised in the way that Oliver Mundell set out. It feeds into a wider concern that we leave too much to ambiguity.

If Alex Cole-Hamilton is right that the phrase “good parenting practice” is ambiguous, what are

“such steps as ... appropriate to promote ... awareness”?

That does not mean anything. If “good parenting practice” does not mean anything, neither does what is in the bill.

Alex Cole-Hamilton

The bill would allow ministers the flexibility to respond to and reflect the cutting edge of good parenting practice—it would not limit them in any way. I think that we should welcome that.

I would have had more sympathy with an amendment that placed on ministers a duty to report to Parliament what steps they had taken, so that the matter could not be left and we would revisit it. However, amendment 9 tries to write statutory guidance in primary legislation, which is never a good thing.

Liam Kerr

I thank the member for that clarification. I am wondering aloud—I will not seek a response on this—whether it suggests that he might vote for the amendment, with a view to further amending the provision at stage 3, which is an opportunity that would be open to him.

I turn to something that I heard Fulton MacGregor say, which I think is quite concerning on a wider level—not only in relation to amendment 9. He accepted that there might be some “risk of unnecessary criminalisation”. Surely the job of the Scottish Parliament is to reduce such a risk to zero and we, as MSPs, must take all the steps that we can to achieve that. Amendment 9 represents one part of that process. It seems to me that if Mr MacGregor accepts that it is our job to reduce the risk to zero, he must support it.

John Finnie

I know that Mr Kerr was not present at the committee’s evidence-taking session with Police Scotland and Social Work Scotland, but is he aware of their evidence on how the present arrangements work and their view that nothing substantial would change?

Liam Kerr

I am aware of the evidence, but it does not detract from my main point. I cannot accept that there might be some risk. People out there might be watching this right now and saying, “Hang on—these MSPs are about to pass a bill that leaves me with some risk of ‘unnecessary criminalisation’”. That is terrifying, Mr MacGregor.

Fulton MacGregor

I am intervening because Mr Kerr has misquoted me—or perhaps has not quoted my words in context. I have said that there is a perceived risk of unnecessary criminalisation, and I believe that that is why Mr Kerr has lodged amendment 9. The committee has heard overwhelming evidence that that is unlikely to be the case and that the procedures and systems that we have in place, especially on child protection, are robust and already deal with such situations every single day. Therefore I do not accept the premise of Mr Kerr’s remarks towards me. I do not think that the bill leads to a risk of unnecessary criminalisation; in fact, it strengthens the law on protection of children.

Liam Kerr

I think that the Official Report will be revealing in that regard. I understand that Mr MacGregor came back in on my point because I was quoting his words back to him, but—

Fulton MacGregor

You are quoting—

Liam Kerr

I will move on, convener—it is fine.

Failure to agree to amendment 9 will represent a massive missed opportunity to reduce risk and reassure parents—who I do not think will look at the explanatory notes, Mr Finnie—and the public, and it will make the bill better. I urge the committee to take that opportunity.

The Convener

The question is, that amendment 9 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)

Against

Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 9 disagreed to.

Section 2 agreed to.

Section 3—Transitional and saving provision

The Convener

Amendment 2, in the name of Annie Wells, is grouped with amendment 3.

Annie Wells

My comments will be relatively short. Amendment 2 is a clarifying amendment that is intended to make clear the rights of parents. Section 3(2) states:

“The Scottish Ministers may by regulations make such further transitional, transitory or saving provision as they consider necessary ... in connection with ... section 1.”

Amendment 2 seeks to ensure that

“For the avoidance of doubt”,

it should be made clear that anything that is introduced above and beyond the bill will not inhibit parents’ existing rights in accordance with the Children (Scotland) Act 1995. That would include, for example, the rights of a parent to prevent harm to their child, whether that involves preventing a child from running across a road or the need to administer life-saving medicine to a distressed child. Amendment 3 is also straightforward; it seeks to ensure that any changes should be subject to proper parliamentary procedure.

I move amendment 2.

Gail Ross

I have a couple of questions on these amendments. I am sorry, but I was uncertain as to what amendment 2 seeks to do when I first read it; I am even more uncertain after hearing an explanation from Annie Wells about children running out into the road and the need to administer medicine. The amendment contains the phrase

“For the avoidance of doubt”,

but, from all the evidence—we have said this more than once—there is no doubt that the bill provides a clarification in law.

The amendment also says that the bill should

“not unduly limit the ability of parents to carry out their responsibilities to their children.”

Does that mean that parents could, if they so wished, bring forward a judicial review and argue that the bill is unlawful in some way? I need a lot more explanation of what amendment 2 is intended to do.

With regard to amendment 3, in the name of Annie Wells, it is usual for ancillary provision powers such as those in section 3(3) to be subject to the affirmative procedure when there is a power to amend primary legislation, but there is no such power here. Indeed, the powers are quite limited. I will therefore be rejecting the amendment. Although, at first glance, it seems to be quite straightforward, its intention does not apply to the bill.

Maree Todd

I am grateful for the opportunity to speak to amendments 2 and 3. The Scottish Government does not consider amendment 2 to be necessary. The powers that are contained in section 3(3) relate to making regulations on

“transitional, transitory or saving provision ... in connection with the coming into force of section 1.”

So far, we have not identified any need to use those powers.

More fundamentally, the powers in section 3(3) are quite limited and technical in nature. They relate only to the removal of the defence that is contained in section 1. In addition, they are not about substantive parental responsibilities and rights as contained in part 1 of the Children (Scotland) Act 1995. As a result, there is no doubt to be avoided here because the regulations could not make substantive provision on the rights and responsibilities of parents. Amendment 2 is therefore unnecessary and, on that basis, I urge the committee to reject it.

Amendment 3 relates to the parliamentary process that is to be followed when regulations are made under section 3(3). The regulation-making power under section 3(3) does not include the power to amend primary legislation, which is when the affirmative procedure is typically appropriate. I also note that the Delegated Powers and Law Reform Committee was content with the delegated powers provision in the bill. I therefore invite the committee to reject amendment 3.

John Finnie

My remarks contain a measure of duplication with what the minister said. The explanatory notes and the delegated powers memorandum both clarify that the regulation-making power in section 3(3) is technical and limited, and that the negative procedure is therefore considered to be the most appropriate. The Delegated Powers and Law Reform Committee considered the DPM and had no comments to make. The delegated power is limited to what is

“necessary or expedient in connection with the coming into force of section 1.”

It is included in the bill to give the Scottish ministers flexibility should they identify any

“further transitional, transitory or saving provision”

that could not have been anticipated when the bill was drafted. I therefore do not consider that there is any “doubt”—as is suggested in amendment 2—that the regulation-making power could in any way

“limit the ability of parents to carry out their responsibilities to their children”.

Perhaps the member could give an example when she sums up.

10:00  



Furthermore, the new test that is set out is vague and subjective, particularly in relation to the inclusion of “unduly”, which we covered earlier and which implies that some limitation is legitimate, not least because one primary responsibility is to protect children from assault. In her evidence, the minister told the committee that she did not think that the power would be used.

On amendment 3, and as already stated, the negative procedure is considered appropriate for such a transitional, transitory and saving provision, which is largely technical in nature and which in any case is limited to what could be considered necessary or expedient in connection with the coming into force of section 1.

I ask members to reject amendments 2 and 3 in the name of Annie Wells.

Annie Wells

I thank members for their input. The point that I was trying to make with amendment 2 is that it is not yet clear what transitional regulations could be of concern. At the moment, there is not a lot of detail on the transitional regulations. That is why I lodged that amendment.

On amendment 3, it is not that the negative procedure is always to be used; things can be done in the normal way. I lodged amendment 3 given the sensitivity of the bill, so that Parliament could scrutinise further any future transitional regulations. On that basis, I wish to press amendment 2.

The Convener

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)

Against

Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 2 disagreed to.

Amendment 3 moved—[Annie Wells].

The Convener

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)

Against

Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 3 disagreed to.

Section 3 agreed to.

Section 4—Commencement

The Convener

Amendment 4, in the name of Oliver Mundell, is grouped with amendments 5 and 6.

Oliver Mundell

This is a set of simple, consensus-building amendments, which try to capture in guidance the points that came up in evidence at stage 1. It is important to capture not necessarily in the bill but in guidance some of the points that my colleague Liam Kerr raised in relation to amendment 9. It is important that we ask the Scottish Government to provide guidance and information that would be useful.

Adam Tomkins

If I were a member of the committee, I would support amendment 4. It is not merely necessary but essential to give clarity to the reasonable points of doubt that exist with regard to the bill, notwithstanding the protestations to the contrary from some quarters.

I note that proposed new section 4(1C)(b), which amendment 4 would introduce, mentions guidance having to include guidance on

“the limits of physical force”.

Does the member accept that the intention of the bill is not matched by the bill as introduced, in that its clear intention, as have heard repeatedly this morning and as we heard throughout the stage 1 debate a couple of weeks ago—and as Mr Finnie makes clear in his policy memorandum—is to outlaw the “physical punishment of children”? The phrase “physical punishment” comes up over and over again, and I think that both Mr Finnie and the minister have used it repeatedly this morning. That is not what the bill does, however.

The bill goes further—potentially much further—than that, to criminalise the actions of parents, carers and guardians of children that are not physical punishment but are other actions that, under the definition in Scots law at the moment, may constitute an assault. The fatal flaw in the bill is to assume—

The Convener

Mr Tomkins, I must remind you that we are not debating the bill in its entirety just now. In your intervention, you should speak to the amendments that are before us at the moment.

Adam Tomkins

Thank you, convener; I am happy to take that advice. For clarification, I am speaking directly to the words in Mr Mundell’s amendment that say that guidance must include guidance on the use of physical force. I am asking Mr Mundell to clarify what he understands by that in the context of the bill. I am speaking directly to those provisions.

The mistake is to assume that physical punishment and assault mean the same thing when they do not. For that reason, it is essential that guidance is provided in advance of the bill coming into force to clarify whether it is intended to criminalise assaults against children that do not constitute physical punishment.

Oliver Mundell

I thank Adam Tomkins for that intervention. I agree with him up to a point. I think that it would be better to make that clarification in the bill. Doing so in guidance is a second-best option.

Adam Tomkins

For the record, I sought to bring to the committee amendments that would have allowed a debate on that issue, so that those issues could have been clarified in the bill. However, those amendments were ruled inadmissible, and we heard the convener this morning explain that she was not able to give reasons as to why they were ruled inadmissible.

Oliver Mundell

I thank Adam Tomkins for that explanation.

There are other important points in the guidance. Throughout our scrutiny of the bill, we have heard from the minister, from the member in charge and, in fairness, from every member of the committee that the bill is not seeking to criminalise parents. Again, there is a duty to make clear to parents, social workers, charities, organisations that work with children and individuals who are involved in children’s day-to-day lives what the alternatives are to picking up the phone and contacting the police.

I am particularly exercised about the issue that is dealt with in proposed section 4(1C)(d) and in amendment 6, which involves the legal support and advice that is available to children. The Children (Scotland) Act 1995 places a responsibility on parents to act in a legal capacity in relation to their children. Where children are subject to an offence that involves them as a victim or a witness, the parents should be able to access legal advice and support—

Alex Cole-Hamilton

I understand the point that the member is making and I have some sympathy with the interests of children who have witnessed a crime. Why did he not raise this issue in an amendment to the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill?

Oliver Mundell

I have to say that that was an oversight on my part. I heard that argument earlier this week from children’s charities, but I do not think that the fact that something was not done in previous legislation is a good reason for not doing it now.

What has drawn the issue to my attention at this point is that there is something different in relation to this bill, which is the fact that removing the defence means that there is a category of behaviour that I do not think would meet the public interest test in every case. As the Crown Office itself says in its written submission, difficult questions arise in relation to an area of behaviour that involves very mild force. I think that, in those cases, it would be extra helpful to ensure that the child had access to legal advice that would enable them to understand what the likelihood of success of any action would be, and that there should be advice on what the impacts on the family would be of going through a legal process. I do not see what harm it could do.

The sort of legal advice is something that would be easily available to me, as an adult. Like most adults, I could pay to access legal advice, but children cannot always do that, and that can be particularly difficult for children who are not supported by their parents, or for the many children who have single parents. I do not see what possible harm it could do to make explicit in guidance the good advocacy services and legal support that are available, many of which we discussed when we considered the Age of Criminal Responsibility (Scotland) Bill. I struggle to see how people would disagree with that.

In amendment 5, I have tried to capture what I am looking for in the Lord Advocate’s guidance. I recognise that that might be more difficult and that it creates questions.

Gail Ross

Did you consult the Lord Advocate about putting measures on his guidance in the bill? Has he given an opinion on that?

Oliver Mundell

He has not given an opinion on it and I did not seek one, because that is not my role as a parliamentarian. He operates separately from Parliament, which is the point that I was coming on to. That creates challenges as to whether it is appropriate to direct him in this way. However, I lodged amendment 5 to emphasise the point and so that we could at least have a discussion on what I feel is an important issue.

Under proposed new section 4(1E)(a), the Lord Advocate’s guidance would have to cover a person’s responsibility to protect the child who they are in charge of and how that interacts with the removal of the defence, particularly in cases where physical force is used in a way that is not physical punishment—it can be different from physical punishment but to outside parties it might look the same. Under proposed new section 4(1C)(b), ministers would have to publish clear guidance on the use of force in “common situations”. A number of examples of that have come up, including from other countries, and we all accept that the bill is not designed to capture those things. Proposed new section 4(1E)(a) really makes the same point, but I accept that members will take individual judgments on whether it is appropriate to put that in the bill, given the commitments that we had from the Lord Advocate.

I move amendment 4.

Alex Cole-Hamilton

I will try to be brief. I will speak against all the amendments in the group, but particularly amendments 4 and 5. I strongly disagree with the premise of amendment 4, which suggests the existence of parental rights in relation to the use of physical force. In every evidence session at stage 1, we rehearsed the fact that there is no such right enshrined in international conventions or treaties.

Oliver Mundell

I accept the member’s point but, in Scots law, there are clear cases of that. The member has set out some of them himself, such as picking up a child, holding back a child and pulling a child’s hand away. Does the member accept that those are uses of physical force?

Alex Cole-Hamilton

I do not disagree that there is a right to restraint, but we are perhaps getting into a semantic argument that is better suited to the stage 3 debate in the chamber. To me, “physical force” suggests a punitive element, whereas “restraint” does not, and that is an important distinction. As such, amendment 4 would lend confusion to what is otherwise a clear bill.

Another aspect of amendment 4 is about children who are witnesses in criminal proceedings involving their parent or guardian. That strays beyond the scope of the bill. It would feel like an aberration if it was in the bill in isolation, with no reference to other legislation that deals specifically with that.

Oliver Mundell

The member might note that, under paragraph (1B) of amendment 4, any guidance would be only

“on the operation of this Act.”

That might clarify the point.

Alex Cole-Hamilton

I am grateful for that, but I still think that that goes beyond the scope of the bill.

On amendment 5, when the Lord Advocate gave helpful oral evidence to the committee a couple of weeks ago, he could not have been clearer that he intends to produce statutory guidance. Frankly, it is extraordinary that we as parliamentarians should seek to compel the Lord Advocate towards the production of prosecutorial guidance, when it is his job to do that and he has said that he is going to do it. He knows that this is one of the most sensitive bills that the Parliament will pass in this session. As such, I would expect the production of guidance on it to be at the top of his in-tray. It is wholly unnecessary for us to start directing his work through primary legislation. For that reason, I will not support any of the amendments in the group.

10:15  



Mary Fee

I want to speak to amendment 6. On first reading, there is no reason why I would not have sympathy for it, given that it asks for support for children. I have a great deal of sympathy for the idea that support should be provided to children in instances of arrest or criminal proceedings or prosecution. I have done a considerable amount of work, with families who have been affected by imprisonment, on the impact of prosecution on a child and the long-term mental health impact that any interaction with a criminal prosecution can have on a child. I have often said in Parliament that children are the forgotten victims of crime. When an adult carer is arrested and removed from the home, the children are often forgotten.

I will explain what has pulled me back from supporting amendment 6. I have a deal of sympathy with Alex Cole-Hamilton’s comments. I think that what amendment 6 proposes goes beyond the scope of the bill. Support for children should be provided regardless of whether the circumstances relate to the bill; support should be provided in relation to any situation involving prosecution. Perhaps Oliver Mundell could provide some clarification when he winds up, because I was slightly confused when he mentioned independent legal advice. What I have in mind is more along the lines of emotional support on the way through prosecution. If we limit the support that can be provided to legal advice and restrict its provision to circumstances that relate to the bill, we will miss an opportunity. The issue of support goes way beyond the scope of this bill.

Maree Todd

The Government does not support amendments 4, 5 and 6.

First, it is proposed that the Scottish ministers should provide guidance on the rights of parents to use restraint. Physical punishment is not needed to keep children from harm. The bill will not affect the ability of parents or carers to use restraint to stop a child coming to harm. Information about limits on the use of physical force could undercut the key aim of the bill, which is to remove the reasonable chastisement defence. Any such information could simply be a guide to the use of force.

I would like to respond to the exchange between Oliver Mundell and Adam Tomkins. The bill is intended to give children equal protection from assault. The law on assault is clear. At stage 1, the committee heard evidence that police officers and prosecutors apply it on a daily basis; there is no problem with the clarity of the law. The bill will increase the clarity of the law.

Adam Tomkins

At stage 1, you said:

“At the heart of the defence is the concept that it can sometimes be reasonable to strike a child.”

You went on to say:

“removal of the defence reflects the growing body of international evidence that shows that physical punishment of children is harmful and ineffective.”—[Official Report, 28 May 2019; c 14.]

That is all fine, but do you accept that the bill goes further than that and that it will criminalise not merely striking or physically punishing a child, but all assaults against children, regardless of whether they involve a physical attack? Do you accept that the law of assault is broader than that and that, therefore, the bill will, by removing the defence of reasonable chastisement, bring into the ambit of the criminal law more than simply striking or physically punishing a child?

Maree Todd

I accept that the law of assault is broader and that it includes an attack that puts the victim into a state of fear of immediate physical injury. Is Mr Tomkins suggesting that it should be permissible for a parent to do that?

Adam Tomkins

What I am saying is that the bill should reflect its policy objective. The bill’s policy objective could not be clearer—it is to outlaw the physical punishment of children. Rightly or wrongly, inadvertently or deliberately, as drafted, the bill does that and then some. It does more than that. In the interests of clarity—which I think is a cardinal value in criminal law—I seek to amend the bill or to urge that the bill be amended so that it accurately reflects its stated ambition, as set out in the policy memorandum.

Maree Todd

As I have said already, the intention of the bill is to give children equal protection from assault. The law of assault is perfectly clear in Scotland; it is prosecuted day in, day out. I think that you are casting doubt where none exists.

Amendment 4 does not make clear what it means by the term “common situations”. For example, some children with autism can be oversensitive to touch and they experience pain differently. Rather than what is set out in amendment 4, our plan is to raise awareness in line with the duty set out in section 2, taking account of children with special needs and other vulnerable children. That is consistent with what the committee said at stage 1.

Amendment 4 also proposes that the Government issue guidance on

“best practice on alternatives to prosecution”.

This cuts across the constitutional independence of the Lord Advocate and the courts. It would not be appropriate for the Scottish Government to issue guidance that infringes on that independence. Nor would it be appropriate for the Scottish Government to issue guidance that, in establishing limits of force, restricts the courts’ ability to take into account the particular facts and circumstances of each case. Universal and targeted services and voluntary organisations already offer extensive support in relation to issuing guidance for families.

I am concerned about the implications of amendment 5 for the Lord Advocate’s independence. Generally speaking, it is for him to independently determine prosecution policy and any guidelines that he issues to Police Scotland. It is also generally a matter for the Lord Advocate to decide whether such guidance should be published.

I understand that, in making that decision, the Lord Advocate considers whether publication would be liable to prejudice the prevention or detection of crime. There is a clear risk that this guidance, if published, could be used as a guide to avoiding prosecution. It could also undermine the clarity that the bill seeks to provide.

Oliver Mundell

Why, then, did the Lord Advocate commit to issuing similar guidance when he appeared before the committee?

Maree Todd

I cannot speak for the Lord Advocate, but it is perfectly usual for the Lord Advocate to issue guidance. That is not an unusual thing for him to do. It does not need to go into statute on the face of a bill, though. That would be unusual. A statutory duty in those terms is simply not needed.

The committee has heard from the Lord Advocate that he intends to issue guidance and that the approach to prosecutions will be informed by the state’s

“responsibility to protect children from harm and by a consideration of the best interests of the child.”

The committee also heard from the Lord Advocate about the two things that a prosecutor will consider when assessing a report of an alleged crime: first, whether there is credible evidence that a crime has been committed and,

“secondly, if there is sufficient evidence, what action ... would be in the public interest ... The Scottish prosecution code sets out the factors that may, depending on the circumstances, be relevant in assessing the public interest.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 3, 2.]

Police Scotland has confirmed its intention to issue national training on removal of the defence. Again, this clearly shows that amendment 5 is not needed.

On amendment 6, the Victims and Witnesses (Scotland) Act 2014 makes extensive provision for the rights of vulnerable witnesses, including children, and the support that they are entitled to access. Similarly, provisions within the recent Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 provide for reforms relating to special measures for vulnerable witnesses such as children in criminal cases, including the greater use of pre-recorded evidence at trial. There is therefore no need for amendment 6 and, in potentially delaying the abolition of the defence, it makes the picture for children’s rights worse, not better.

Finally, these amendments state that section 1 cannot come into force until the publication duties have been complied with. Who is to say when that has happened, so that section 1 can come into force? For all those reasons, I invite the committee to reject amendments 4, 5 and 6.

John Finnie

The amendments in this group seek to make the proposed legislation’s commencement conditional on the issuing of ministerial and prosecutorial guidance. The amendments are technically flawed and would not work as intended. The bill’s substantive provisions would automatically come into force 12 months after royal assent, and none of the amendments as drafted would prevent that from happening.

Preconditions on commencement can be meaningfully set only if there is some flexibility about timing in the first place, most obviously by having commencement by regulations and by saying that ministers may not bring the act into force until they have done X, Y and Z. If any of the amendments were agreed to and some of the additional things that are listed had not been done by the 12-month deadline, there would be genuine uncertainty as to whether section 1 was or was not in force, which would simply cause confusion in the law, to no one’s benefit. It would distract from the clarity that the bill aims to deliver.

It is not clear who the guidance that is referred to in amendment 4 is directed at, and what status it is expected to have. Is the guidance meant for parents, the police, social work services or prosecutors? The committee has been told that current guidance and/or information will be provided or updated for all those groups.

The Scottish Government provides guidance and support to parents via a number of agencies, including social work and health boards. Police and prosecutorial guidance is a matter for the police, the Lord Advocate and COPFS, and information is already publicly available in the prosecution code, including the public interest test. There has been lots of evidence to the committee on that.

Amendment 6 appears to be a stripped-down alternative to amendment 4, omitting paragraphs (1C)(a) to (c) of amendment 4. Therefore, the same questions as those that I asked about amendment 4 apply. Again, it is not clear who the guidance that is referred to is directed at and what status it is expected to have.

Amendment 5 contains an inherent contradiction between issuing guidance on policy, which must be in general terms, while at the same time ensuring that it is appropriate to the

“individual circumstances of particular cases”.

The Lord Advocate told the committee clearly that guidance will be prepared and issued to the chief constable. He said:

“If the bill is passed, I intend to issue Lord Advocate’s guidelines to the chief constable of Police Scotland on the investigation and reporting of allegations of assaults by parents on children.”

He went on to say:

“I issue guidelines to the chief constable, and it is then his responsibility to disseminate the instructions to his officers on the ground.”

The Lord Advocate also set out details of the current publicly available prosecution code, which contains comment on the public interest test and how the best interests of the child are central to decision making. He told the committee:

“Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases. When appropriate, that response may include the use of informal response by the police, recorded police warnings, diversion and other alternatives to prosecution. At the same time, prosecution will be enabled when that is properly justified by reference to the circumstances of the individual case. The approach will be informed by our responsibility to protect children from harm and”—

importantly—

“by a consideration of the best interests of the child.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 3,9,3.]

Therefore, amendment 5 seems to add no value to the work that the Lord Advocate has already confirmed is under way.

I ask members to reject all the amendments in the group.

Oliver Mundell

It has been an interesting discussion. I am happy to clarify the status of and intended audience for guidance in revised amendments at stage 3 and to look at adding clarity to some of the terms used.

On the commencement issue, it was not actually a condition that I was looking for; rather, it was a matter of how to get guidance issues discussed. There was nowhere else for such provisions to fit easily into the bill and I was advised that that wording was the best way to do it. I will look at the possibility of removing the wording at a later stage.

On Mary Fee’s points, as I said to Alex Cole-Hamilton, the amendments only refer to guidance

“on the operation of this Act”.

Secondly, paragraph (1I) of amendment 6 says that the guidance would not be limited to

“independent legal advice and contact with a nearest relative or other trusted adult”.

It is just that those are two things that I feel strongly about. Independent legal advice is important because, in these marginal or difficult cases, children should be able to understand the probability of success of court action, how they wish to interact with that and what their rights are.

10:30  



The nature of a relationship between a child and their parent is special and is recognised as being legally different from other relationships in law. Given the sensitivities around charges that are likely to be made as a result of the defence being abolished, it is really important, and I am sorry that I have not pursued this in relation to other offences. It is an important point.

I accept the consensus view on amendment 5 and I will not seek to push it. However, I will press amendment 4 and seek to move amendment 6 at this stage. They could be tidied up or perhaps moved to another section of the bill at stage 3.

The Convener

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)

Against

Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 4 disagreed to.

Amendment 5 not moved.

Amendment 6 moved—[Oliver Mundell].

The Convener

The question is, that amendment 6 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)

Against

Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 6 disagreed to.

The Convener

Amendment 7, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell

I do not intend to speak to amendment 7 for long because, judging by the previous debates, I do not imagine that it is likely to get any support. The simple intention is to ensure that bodies are properly resourced. Despite the minister’s letter of 12 June, there is still some uncertainty around that point and it is important that Parliament at least gives thought to the issue. I also know that other members might take an interest in the issue at stage 3.

I move amendment 7.

Maree Todd

Amendment 7 seems to be an attempt to delay the bill. Outside the ordinary budget process, it would be unusual for the Scottish Government to provide a statement on the resources being provided to various bodies, and for the Parliament to specifically approve that.

In response to the committee’s stage 1 report, the Scottish Government wrote to members of the implementation group to seek information about costs. We have provided the committee with a letter outlining the results of our discussions with the implementation group, and we will have further discussions with members of the group.

Resources required in relation to the bill would be one-off implementation costs and on-going costs. It is not clear if the resources referred to in amendment 7 are intended to cover implementation costs or running costs, or both. It is also not clear for what time period resource implications should be reported to Parliament.

The various bodies that will be affected by the bill can be expected to seek additional funding as a result. That will be considered as part of the usual Government budget procedures, including the budget bill, which Parliament scrutinises each year.

The best approach is to rely on the usual budget bill process rather than to invent a new uncertain, bespoke procedure, which, frankly, just seems to be an attempt to delay the bill.

The same concerns that I raised on amendments 4, 5 and 6 also apply to amendment 7, because of the uncertainty that it would create over how we would know whether the bill was in force. For those reasons, I invite the committee to reject amendment 7.

John Finnie

The financial resolution procedure is designed to ensure Parliament’s approval of expenditure associated with a bill, should that amount be considered significant. In this case, no resolution was considered to be required. Of course, there is also the opportunity for the Parliament to scrutinise the Scottish Government’s budget.

No other example comes to mind of a bill being passed by Parliament but then being unable to be brought into force until a financial statement has been published and subject to Parliament’s approval. It would be interesting to know whether the member who lodged the amendment has any such examples. Does he believe that there should be a new stage 4 for all bills? Perhaps it would be just for those bills with which he does not agree.

The financial memorandum sets out the estimated costs of the bill, and the Scottish Government has commented on the work that it is undertaking to prepare for its implementation.

The committee heard from relevant agencies and the Government that the costs associated with the bill would not be prohibitive; they also said that they are difficult to estimate with any certainty at the moment.

The amendment seems to presuppose that additional resources would be required. If the ministers consult the specified people and they all say that the commencement of section 1 would not require any additional resources, ministers would publish a statement to that effect. If the Parliament then passed a resolution saying that it agreed with that view, would that count? That would appear not to meet subsection (1M) of amendment 7, as it would not be a resolution that

“the resources set out in the statement ... are sufficient”,

since the statement would not “set out” any additional resources.

I hope that members followed that—it was as straightforward as the proposal itself. I apologise.

Finally, during stage 1, there seemed to be no strong view that resource funding was a major issue with the bill. Indeed, the Parliament’s Finance and Constitution Committee received only one submission in response to its consultation on the financial memorandum to the bill.

I ask committee members to vote against Oliver Mundell’s amendment 7.

Oliver Mundell

I am not surprised that the member in charge of the bill did not pay much attention to the minority statement in the stage 1 report, in which Annie Wells and I drew attention to our concerns about drawing existing resources away from children who most need support most, and—

John Finnie

Will the member take an intervention?

Oliver Mundell

Certainly.

John Finnie

I am grateful to you. I did not comment on that—I was commenting on the response that the Parliament’s Finance and Constitution Committee received.

Oliver Mundell

With all due respect, I am not a member of that committee. I moved amendment 7 with a view to satisfying the concerns that I had in relation to stage 1. From my constituency work and my wider work in the Parliament on children and young people, I am aware of the big pressures on resources in many of the organisations that are listed. It is no secret that I do not support the general principles of the bill, because of its vagaries and the difficulties that it will pose. Given my view that the bill is unnecessary, we should be absolutely satisfied that those organisations have the resources to implement it and that it does not force them to change their practices. That is what amendment 7 is intended to do.

I press amendment 7.

The Convener

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)

Against

Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 7 disagreed to.

The Convener

Amendment 8, in the name of Annie Wells, is in a group on its own.

Annie Wells

During stage 1, we received evidence from the Crown Office and Procurator Fiscal Service that limited data were available. Amendment 8 would ensure that there would be better evidence before the bill comes into force.

It has been clear since stage 1, and as the bill has progressed, that we need more data about the number of cases in which the defence of reasonable chastisement has been considered and has been a relevant factor. We have been told that the available data are very limited. That proves my point that we need more data to understand the situation before section 1(1) comes into force and that my amendment is necessary.

I move amendment 8.

Alex Cole-Hamilton

I partly understand why Annie Wells has lodged amendment 8. However, to turn her own argument against her, data to do with the use of the legal defence of reasonable punishment are so scarce precisely because such a defence is barely ever used. That is because—this should give her confidence—the best interests principle and the public interest test are always applied effectively by the Crown Office and Procurator Fiscal Service in taking cases through the courts.

The Lord Advocate offered us comfort that, through his guidance, he will reassert that the best interests principle and the public interest test will be applied before any case is taken to court. As such, we will not see legions of parents marched through the courts as a result of the bill; it will simply lead to a cultural shift that I believe the bill’s supporters around the table would like to see.

Maree Todd

Amendment 8 seems fundamentally to be an attempt to delay the bill. We have already indicated that we do not have statistics on the use of the defence in court cases. The reason is that the Government’s criminal proceedings database does not hold information relating to defences that are lodged in criminal trials. Our statistics are derived from data that are held on the criminal history system—the CHS. That central hub is used for the electronic recording of information on people who are accused and/or convicted of perpetrating a criminal act. Information relating to defences that are lodged is not recorded in an electronically extractable format and is therefore not held on the CHS.

Gail Ross

Does the minister agree that, if the data are not available and are unable to be extracted, the amendment would—if it was agreed to—mean that the whole bill would be delayed forever and would never go ahead?

Maree Todd

Absolutely—amendment 8 is fundamentally an attempt to delay the bill.

People will make a plea of guilty or not guilty at the start of a criminal case. There is no plea of justifiable assault or reasonable chastisement. More generally, the amendment refers to

“data on the effect of”

the defence, and “analysis of that data.” Of course, that is not just about the number of times that the defence is used in court—it is also about the negative effect of the current defence of reasonable chastisement. As the committee heard, there is a wealth of evidence—

Fulton MacGregor

The minister says that the Government does not have the stats on how often the defence is used. Would she accept that, given some of the evidence that we have heard in committee and what Alex Cole-Hamilton said earlier, it is likely that it is used very little, and that practitioners such as social workers, teachers and police officers who deal with children day in, day out rarely think about the defence when they are assessing situations?

Maree Todd

It is clear that we cannot get that data without interrogating manually all the evidence to do with those cases and prosecutions. Amendment 8 is undoubtedly an attempt to delay the bill’s introduction.

I want to talk about the negative effect of the current defence of reasonable chastisement. We received, and the committee has heard, a wealth of evidence about the negative impact of physical punishment on children. There are many written reports on that—

The Convener

I am loth to cut you short, minister, but I am conscious that I asked members to focus on the amendments. We will all have an opportunity at stage 3 to make such points.

Maree Todd

I was focusing on the amendment. The amendment refers to

“data on the effect of”

the defence, and “analysis of that data.” That relates to the evidence on whether the defence has a negative impact on children.

I do not think that we need any more data on the effect of the defence. As we have well established, reasonable chastisement has a negative effect. Let us remove it, and let us not delay the bill. For those reasons, I urge Annie Wells not to press amendment 8 to a vote. If it is pressed, I invite the committee to reject it.

10:45  



John Finnie

The committee has already heard from COPFS and the Lord Advocate that such data are not available. Therefore, it would not seem wise to legislate to require publication of data that the relevant bodies have already confirmed are not available.

The amendment is also vague in its reference to

“cases in which that rule is considered to have been a relevant factor”.

Considered by whom? What factors are relevant? Are cases to include incidents that were investigated, or only those that were prosecuted or heard in court? Over what timescales?

I will give an example. If the police did not record a smacking as a crime because the police constable who attended saw it as an exercise of reasonable chastisement, that might count as such a case, but there would not be any data on it precisely for that reason.

There is also the issue of what value data would add, if it were available in advance of section 1 coming into force. In what way would it be analysed? Surely more relevant is the number of cases of assault against children that have been brought, the nature of those cases and the outcomes. The Lord Advocate and Anne Marie Hicks, the national procurator fiscal for domestic abuse at COPFS, spoke to the committee about that. I ask committee members to vote against amendment 8 in the name of Annie Wells.

Annie Wells

I clarify that the amendment was never meant to be a delaying tactic. I thought that it was relevant, having heard the Lord Advocate himself say that there might be an increase in reporting. I thought that we should see some evidence of that. My amendment is about the practical effects on children. For that reason, I press it to a vote.

The Convener

The question is, that amendment 8 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)

Against

Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 8 disagreed to.

Sections 4 and 5 agreed to.

The Convener

The question is, that the long title be agreed to. Are we agreed?

Members: No.

The Convener

Members should note that there will not be a division on this question, but the dissent of Annie Wells and Oliver Mundell is noted.

Long title agreed to.

The Convener

That concludes stage 2 consideration of the bill. It will now be reprinted as amended at stage 2.

The Parliament has not yet determined when stage 3 will be held; members will be informed of that in due course, along with the deadline for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team. I thank John Finnie and the minister, Maree Todd, along with her officials, for their attendance.

The committee’s next meeting will be on Thursday 27 June, when we will discuss our approach to the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

10:48 Meeting continued in private until 11:09.  



Stage 3 - Final changes and vote

MSPs can propose further changes to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law

Debate on the proposed changes

MSPs get the chance to present their proposed changes to the Chamber. They vote on whether each change should be added to the Bill.

Documents with the changes considered at this meeting:

Video Thumbnail Preview PNG

Stage 3 debate on changes transcript

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 of the Children (Equal Protection from Assault) (Scotland) Bill.

Adam Tomkins (Glasgow) (Con)

On a point of order, Presiding Officer.

I sought to lodge two amendments to the bill, but both were ruled to be inadmissible. The bill is about the criminal law of assault, and my amendments would have clarified the meaning and scope of the law of assault for the purposes of the bill. Moreover, they would have done so in a manner that was designed to give effect to, and not to frustrate, the stated policy objectives of those who have promoted and supported the bill. Those objectives are, of course, to bring to an end the physical punishment of children.

The problem is that the badly drafted bill does not stop there; it goes much further. Under Scots law, an assault can be committed even if no physical force is used. Given that my amendments were in line with the bill’s stated policy objectives, and given that they were avowedly concerned with the scope of the law of assault, which is the subject matter of the bill, why were they ruled to be inadmissible?

The Presiding Officer

I thank Mr Tomkins for giving advance notice that he intended to make a point of order. As the member might be aware, the criteria for admissibility are laid out in standing orders. At stage 2, such decisions are a matter for the committee convener; at stage 3, they are matters for me, as Presiding Officer.

The key aspect of admissibility is that an amendment must be consistent with the general principles of the bill and must be relevant to it. The selection of amendments is a matter for me at stage 3, and I take a number of factors into consideration when reaching my decisions.

Adam Tomkins

On a point of order, Presiding Officer.

I cast absolutely no aspersions on the motives or purposes of those who advised you on the matter: I have no doubt that they acted in good faith throughout. However, I have concerns about the effect of their advice and your ruling.

As I understand it, Presiding Officer—please correct me if I am wrong—members of the Scottish Parliament have no means of challenging the advice of officials when, as in this case, we perceive that the advice is so narrow as to rule out amendments to legislation that are honestly believed to be directly and rationally connected to it. Are you content that our rules are appropriate in that regard? Do they need to be reviewed?

The Presiding Officer

I thank Mr Tomkins for his point of order.

I am content. The rules are there to ensure that matters for policy discussion, which he has now raised and put on the record, are for policy makers—MSPs—and are not matters for debate between the chair and members. The chair must treat everybody in a fair manner, and apply the rules fairly across the board.

I also point out that, in this case, the legislation team worked with Adam Tomkins as much as possible on trying find a way to try to express the matters as amendments. He has, at least, had the opportunity to make his point on the record.

On that note, we move to stage 3. I ask that members have with them the bill—SP bill 38—the marshalled list and the grouping of amendments. I remind members that the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon, for which there will be a 30-second vote. Thereafter, there will be a one-minute voting period for the first division after a debate. Members who wish to speak on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group.

Section 1—Abolition of defence of reasonable chastisement

The Presiding Officer

Group 1 is on the effect of section 1 on parental responsibilities. Amendment 2, in the name of Oliver Mundell, is grouped with amendment 3.

Oliver Mundell (Dumfriesshire) (Con)

Amendments 2 and 3 are designed to be simple. For the avoidance of doubt, that means that they would not add anything new to the bill, but instead seek to clarify what is already in it. They were intended, in the narrow scope of the bill, to provide some reassurance to parents and address some of the concerns that the committee heard during its deliberations.

I have lodged the amendments in good faith, because I wish to allow the courts, when they consider cases that might come forward under the legislation, to look at the best interests of the child. I am confident that, if my amendments were to be agreed to, they would remove some doubt for the courts—in particular, about restraint and similar circumstances that are complicated to deliberate on, in practice. There is often a fine line: what could appear to some people to be physical punishment might well be appropriate in very limited circumstances when exercised properly by caring parents who are acting within the law.

I also draw out the distinction of restraint. Paragraph (c) of amendment 2 makes specific reference to the exercise of a parent’s

“lawful parental rights and responsibilities”,

which is designed to capture the duties and responsibilities that are already placed on parents by legislation—namely, the Children (Scotland) Act 1995.

I do not intend to say a great deal more, given that the issues that are raised in the amendments have been debated at stage 2.

I move amendment 2.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I rise in opposition to the amendments in the group. I cannot support them for a number of reasons.

Amendment 2 suggests, in part, through interpretation, that there might be times when assault is justified if it is in a child’s “best interests”. We are not creating a new offence through the bill, but amending—

Oliver Mundell

I want to clarify for Alex Cole-Hamilton that the amendments refer to circumstances that currently exist in Scots law, whereby “assault” could mean a person raising their voice or putting someone in a state of fear or alarm. I think that both those things can be acceptable for parents to do rightfully under the law, and I want to make it clear that that is not what we will get under the bill.

15:15  



Alex Cole-Hamilton

Again, we will cover that when we talk about judgment and application of policy by the judiciary. As I have said, we are not creating a new offence; we are repealing an ancient defence. It is a legal defence that we have repealed before. Nowhere in statute or in common law have we felt the need to clarify that physical intervention or restraint of a hysterical and drowning man is not assault. That is just common sense. Application of the new legislation will be met by the same test.

Every day, our police make educated judgments about child protection and criminal assault. We should not presume to tell them how to do that or where the thresholds for that lie. We oppose amendment 2.

Oliver Mundell

Does Alex Cole-Hamilton accept that, in relation to common law, there is already significant case law on assault, which often informs how the police judge things. Under the bill, however, there will not be such case law.

Alex Cole-Hamilton

I am quite certain that the judiciary will draw on that case law, to that end.

Amendment 3 would muddy the water more. There is no lawful right to physically chastise; there is only a defence for it. The amendment also suggests that there might be other kinds of justifiable assault, beyond physical punishment. I am not entirely sure what they might be, but the amendment would leave the eventual act open to interpretation when we should, once and for all, be repealing an arcane and antiquated legal defence. We will not support amendments 2 and 3.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I thank everyone who has been involved in the campaign—which has lasted a number of years—and especially John Finnie and his team for steering the bill through.

From day 1 of taking evidence on the bill, the Equalities and Human Rights Committee was told time and again by organisations and individuals, including the Law Society of Scotland and the Lord Advocate, that removing the defence of justifiable assault would improve clarity in the legal process. An equivalent of amendment 2 was lodged at stage 2 and, after lengthy discussion, Oliver Mundell told the committee that he would consider the wording of the amendment. He has done so, by removing the lines

“to ... maintain the child’s safety and wellbeing”

and

“to ... prevent the child from committing a criminal offence.”

I acknowledge that a change has been made, but it does little to change the intention of the amendment.

Children’s charities—organisations including Barnardo’s, Children 1st and the National Society for the Prevention of Cruelty to Children—many of which are represented in the public gallery today, have urged members not to back amendments 2 and 3, and have stated that they would make the law relating to assault of children unclear, and would do the complete opposite of what the bill intends to do. Amendment 2 being passed would, essentially, take away the central intention of the bill. It would retain a right for parents to use what has been described as “reasonable chastisement” or “a loving smack”.

We talk about clarity, so let me be clear: it is never in the best interests of a child to hit him or her—whether it is a light tap, a smack or anything else. We have heard examples—a child might be about to run on to a road, pull down a pan of boiling water or touch a fire or an open socket—but the method of teaching children through fear belongs in the dustbin of history, and comes from a time when we did not fully understand the consequences for the child.

The other issue with amendment 2 is that, when we begin anything with the phase,

“For the avoidance of doubt”,

that creates, as the Children and Young People’s Commissioner Scotland has stated, the impression that doubt exists. It does not—or, at least, should not.

The United Nations Committee on the Rights of the Child has stated that Scotland should

“prohibit as a matter of priority all corporal punishment in the family, including through the repeal of all legal defences”.

I will not be supporting amendments 2 or 3.

Oliver Mundell

I understand the line of argument that Gail Ross is progressing, but does she not recognise that the bill will not do all those things?

Gail Ross

I listened to all the evidence in the committee and I read everything that was submitted to us by organisations. I am sorry, but I have to disagree with Oliver Mundell. The provision that is proposed in his amendment 2 would remove the clarity that is sought and would not result in the societal shift that we are aiming for under the bill.

I told my nine-year-old son this morning over Skype that we would be considering the bill today, and his response was, “I’m proud of you, mum, but I thought it was already against the law to hit people.”

The young people of Scotland are watching us here today, and I will be immensely proud to vote to align children’s rights with those of adults at decision time, by voting for this welcome and much-needed bill.

The Minister for Children and Young People (Maree Todd)

I am grateful to the committee for its careful scrutiny of the bill and for taking evidence from a wide range of stakeholders, both those for and those against the removal of the defence.

I will discuss amendments 2 and 3 separately, as they raise different issues. The Scottish Government cannot support amendment 2. First, it purports to establish that the removal of the defence will not affect the ability of a parent or carer to

“act in the best interests of the child”.

Who is to decide whether the actions of a parent or carer are in the child’s “best interests”?

Oliver Mundell

It would be for the courts, the police or prosecutors to decide what is in the best interests of the child, given the purpose of the offence. That is how the whole bill is drafted.

Maree Todd

The amendment is not clear whether the parents or the courts will decide. What if a parent or carer were to decide that physically punishing the child was in the child’s best interests?

Oliver Mundell

Will the minister take an intervention?

Maree Todd

One moment.

That is fundamentally at odds with the purpose of the bill, as agreed by the Parliament at stage 1, which is to give children equal protection from assault—with zero qualifications.

Oliver Mundell

The bill fails to recognise the distinctions that already exist, in many aspects of the law, between children and adults. It is appropriate for parents to make a judgment on what is in the best interests of their child. That should be the first thing that happens. When they take that decision and it is incorrect, police and prosecutors should step in. Amendment 2 makes that principle clear.

Maree Todd

The Scottish Government believes that parents should not be allowed to assault their children. Oliver Mundell is of a different view.

Amendment 2 also purports to establish that the removal of the defence will not affect the ability of a parent or carer to restrain a child, either to keep them safe or to prevent them from coming to harm.

Liz Smith (Mid Scotland and Fife) (Con)

Under current law, in what circumstances is a parent allowed to assault their child?

Maree Todd

The defence of reasonable chastisement can currently be used on occasions when a parent assaults their child. Today, we intend to remove that defence.

The removal of the defence does not impact the ability of a parent to use restraint to prevent their child from coming to harm. At its heart, restraint is an act of protection. Physical punishment is an act of discipline. They are fundamentally different.

Oliver Mundell

Under the legislation as it is drafted, who will decide on the difference between restraint and physical punishment?

Maree Todd

As is the case for any report of assault, the police will investigate it, and the Crown Office and Procurator Fiscal Service will make a decision. In its written evidence on the bill, it noted that

“the use of physical force to remove a child from danger, such as pushing the child out of the way of an oncoming car, would lack criminal intent and would not, for that reason, constitute an assault.”

Oliver Mundell

Will the minister take an intervention?

Maree Todd

I would like to make some progress.

“We do not agree physical punishment is required to protect children from harm. We conclude that the bill as drafted will not change a parent’s or carer’s ability to restrain a child to keep him or her from harm.”

In line with the committee’s stage 1 report, we consider that element of the amendment to be unnecessary.

Johann Lamont (Glasgow) (Lab)

My sense is that, across the chamber, people are committed to children being equally safe. However, under the current law, our children are not equally safe. Therefore, I was astonished that the financial memorandum says that

“it is not anticipated the Bill would incur significant costs to implement.”

Will the minister give a commitment to achieving a proper understanding of how vulnerable some of our children are? Despite their parents breaking the law as it stands, they are left in homes where they are neglected and are not nurtured. Those children cannot be supported without adequate resource. Regardless of what this bit of legislation says, if the intention behind the bill is to keep our children safe, will the minister say what resources will go into our communities to ensure that that happens, for all children?

The Presiding Officer

That is an important point, although you were not speaking specifically to the amendments. I will allow the minister to respond.

Maree Todd

I assure everyone in the Parliament and all the people in Scotland that the safety, security and wellbeing of the children of Scotland are paramount for this Government.

Alex Cole-Hamilton

Does the minister recognise, as I do, that in Ireland, Jillian van Turnhout, the former Irish senator, who is in the public gallery, brought similar legislation through the Dáil Éireann, for which there was no financial memorandum because the provisions were contained in an amendment to another bill, and that the legislation was agreed to unanimously in the Dáil and has protected children? Does she agree that such legislation and a Government initiative to drive up positive parenting in our country are not mutually exclusive?

Maree Todd

For once, I agree with Mr Cole-Hamilton. [Laughter.]

Finally, amendment 2 purports to provide that the removal of the defence will not stop a parent exercising their parental responsibilities and rights. Sections 1 and 2 of the Children (Scotland) Act 1995 clearly set out those responsibilities and rights, which include

“the responsibility to safeguard and promote the child’s health, development and welfare”,

and

“the right ... to control, direct or guide”

appropriately

“the child’s upbringing”.

The strand of amendment 2 that we are considering seems to be an attempt to create an exception to the removal of the defence, so that a parent could say that they physically punished their child in exercise of their right to control the child’s upbringing.

Fundamentally—again—that is at odds with what the Parliament has agreed, which is to provide children with equal protection from assault. The proposed approach would muddy the waters. We have frequently heard, throughout the bill’s progress through Parliament, that the bill will bring clarity to the law. Amendment 1 would take away that welcome clarity, again leaving parents unclear about the law.

Parental responsibilities relate to a child’s health and wellbeing, and the evidence is clear that physical punishment can have long-term negative outcomes for a child. Retaining the ability to physically punish children—or even just creating doubt about whether that is permissible—would be at odds with the evidence.

The Scottish Government does not support amendment 3. Section 1(1) of the bill is clear: it abolishes the rule of law whereby the physical punishment of a child in the exercise of a parental right or right derived from having charge or care of a child is justifiable and is therefore not an assault. That does not affect other parental responsibilities and rights as set out in the 1995 act.

Oliver Mundell said that the offence of assault is wide. We agree. We are also mindful that, as the Lord Advocate said, when he gave oral evidence:

“the law of assault ... is applied day and daily by police officers and prosecutors.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 7.]

The law on assault is clear and is regularly used. There is no need for an amendment that seeks to avoid doubt where there is none to begin with. Section 1(1) is clear: it is about physical punishment, because that is what the defence of reasonable chastisement is about. Therefore, amendment 3 would clarify nothing. The parental responsibilities and rights in the 1995 act are not otherwise affected by the bill. Amendment 3 would add doubt, not clarity.

Adam Tomkins

I am grateful to the minister for her patience, given the number of interventions that she has taken.

I agree with what the minister said about clarity in the criminal law, and I agree with what Gail Ross said about the fundamental importance of clarity in the criminal law.

The policy objectives of the bill are stated in the policy memorandum that is attached to it. In paragraph 4, it says:

“The aim of the Children (Equal Protection from Assault) (Scotland) Bill is to help bring to an end the physical punishment of children”.

The committee said, in its stage 1 report:

“The Bill’s purpose is to ... discourage the use of physical punishment.”

Those are not my words. They are the words of the committee and the policy memorandum.

Amendment 3, in the name of Oliver Mundell, says:

“For the avoidance of doubt, this section applies only with regard to physical punishment”.

How is that muddying the waters? How is that doing anything other than bringing welcome clarity to an element of the bill that is currently anything but clear?

15:30  



Maree Todd

We want equal protection for children and adults; the bill achieves that by removing the reasonable chastisement defence. We think that that is the right outcome. Is the member suggesting that parents should have the right to raise a hand to their child so that the child thinks that there is physical injury imminent? An adult doing that to a member of the public could—depending on the exact facts and circumstances—be committing assault. I can see no good reason why it would be acceptable for a parent to do that to their child. No child should fear physical injury at the hands of a parent.

Oliver Mundell

That is exactly what my amendment seeks to do because it is about physical punishment. A parent could take a number of actions that would not be appropriate to do to another adult—confiscating a mobile phone, restricting their access to finance, refusing to let them out of the house and, in some cases, lifting a person up and physically moving them from one setting to another. All those things could be considered to be a form of assault or abuse when conducted between one adult and another but would not be inappropriate actions for a parent in relation to their child.

Maree Todd

I disagree profoundly. I think that the bill brings simplicity and clarity to a currently confused situation and it appears that the Law Society of Scotland agrees with that view.

Daniel Johnson (Edinburgh Southern) (Lab)

In the interests of clarity, can the minister tell us whether she thinks that it is acceptable to lift an adult and place them in another room and whether she thinks that it is unacceptable to do that to a child? That is the important clarification that Oliver Mundell requested.

Maree Todd

I think that I am going to just ignore that point and move on. I think that the law—[Interruption.]

The Presiding Officer

Order.

Maree Todd

I think that the law of assault is crystal clear. The law of assault is prosecuted in Scotland day in, day out, perfectly clearly. I have no concerns about the current law of assault. The Law Society of Scotland says that as the law stands, there is a lack of clarity for the public about what parents and others can and cannot do by way of physical punishment of children. That has led to confusion among parents and carers. The Law Society supports the bill because it thinks that it will provide much-needed clarity.

We have heard repeatedly throughout the progress of the bill that it will bring clarity to the law. I cannot welcome an amendment that would lead to confusion. We do not want the effect of the bill to be that parents continue to have doubt about what is and is not acceptable. I urge members to reject amendments 2 and 3.

John Finnie (Highlands and Islands) (Green)

I do not accept that there is any doubt to address, just as I did not accept that when we discussed the amendments at stage 2. The provisions in amendment 2 are liable to do more harm than good. Adding additional material could cause difficulties in interpretation and hamper the ability of the relevant authorities to exercise appropriate judgment—judgment that, as others say, is applied daily.

We clearly heard—as did Mr Mundell, who was present at the committee—the Lord Advocate, the police and social work all say that the simple proposal in the bill brings much-needed clarity. It is hard to see how we could apply the additional tests set out in amendment 2 consistently, given how vague and subjective they are.

It was a deliberate policy choice not to include a specific statutory provision on circumstances in which force—rather than physical punishment—against a child would be permissible. Although consideration was given to the inclusion of such a provision, the view was taken that the better approach would be for the common law of assault to apply, as it does in relation to adults.

Oliver Mundell

I understand the point that the member is making, and that it was a deliberate decision, but does he accept that other people take a different view, and not just those who, like me, oppose the bill? For example, Professor Andrew Tickell detailed in a column in The National why he felt that it would have been better to create a specific offence with clearly set out thresholds, so that parents would know when the law would apply.

John Finnie

He is an interesting choice. I have to say that, in general, I would defer matters of law to the Lord Advocate.

Risk is inherent in the clarificatory approach that the member seems to be attempting in amendment 2. Setting out such matters in statute risks creating loopholes of dubiety as to the reach of those matters. The most important point, which was raised by a number of members, including my colleague Daniel Johnston, is that under the common law of assault, criminal intent is an essential element of the offence. Lifting a child from one room to another certainly would not fall into that category. As others have said, the use of force—even with an adult—to avoid accident or injury would not ordinarily amount to assault, provided that excessive force was not used.

The key point is that none of those actions would constitute punishment and only the law relating to physical punishment of a child is being changed by the bill.

Evidence at stages 1 and 2 from the Lord Advocate, the Crown Office and Procurator Fiscal Service, the Law Society of Scotland, police and social work stated that the bill would simplify the legal position. Amendment 2 would likely have the reverse effect of that intended; that is, it would introduce doubt rather than dispel it.

Paragraph (a) of amendment 2 would change the purpose of the bill, because a parent could consider physical punishment to be in the child’s best interests. It would also introduce confusion and subjectivity, as there is no objective test of what is in a child’s best interests. The committee heard that prosecutors will continue to consider the best interests of a child as part of the public interest test, and that the relevant matters are already included in the prosecution code, which is taken into account when investigating and prosecuting any case of assault.

Oliver Mundell

If the member accepts that the best interests of a child are already considered as part of public interest test, why does he have such a strong objection to having that test in the bill?

John Finnie

I have already explained to the member that the Lord Advocate said that it is the simplicity of this bill—

Oliver Mundell

The member is not answering the question.

John Finnie

It is the answer. Mr Mundell might not like it, but it is indeed the answer. It is the simplicity that is the attraction. In any case, the reference to the child’s best interests that he is seeking is an intrinsic part of Scots law, and indeed, of the way that all our public bodies discharge their obligations.

Paragraph (b) of amendment 2 is unnecessary. Restraining a child to protect it from harm is quite distinct from physical punishment. There is no overlap, so there should be no doubt about the implications for restraint. Permitting the physical restraint of children, apparently in connection with their safety and preventing harm, is not the focus of the bill, which deals with the use of force in punishment of a child. The bill legislates only in relation to physical punishment. It has no implications for situations that do not involve that, such as when physical hurt is caused to a child in order to protect them from greater immediate harm.

Paragraph (c) of amendment 2 seeks to protect the exercising of

“lawful parental rights and responsibilities”.

Under the current law, smacking a child can count as such a lawful exercise. The point of the bill is to change that, so that smacking a child as punishment can never be lawful. Therefore, as soon as the bill becomes law—as I hope that it will—paragraph (c) would no longer have any application, and so it would become unnecessary, by virtue of its own wording.

On amendment 3, as with amendment 2, I do not accept that there is any doubt. It is clear that the bill will change the law only in relation to physical punishment, and not more generally, so there is no need for amendment 3. It would create uncertainty, doubt and confusion, rather than remove—

Oliver Mundell

I thank the member, who is being very generous and patient. Does “the rule of law” that is referred to in section 1 apply only to physical punishment?

John Finnie

Can the member repeat the question?

Oliver Mundell

Can the member clarify whether “the rule of law” that is mentioned in section 1 applies only to physical punishment?

John Finnie

The rule of law applies all the time. The member has heard from the Lord Advocate.

Oliver Mundell

I meant the specific rule of law around reasonable chastisement and justifiable assault. Does it apply only to physical actions at present in Scots law?

John Finnie

Mr Mundell knows what the definition of assault is. He knows—[Interruption.] Mr Mundell may not like it, but that is the answer that he is getting.

The practitioners have all said that the bill brings welcome clarity. I ask members not to support amendments 2 and 3 and to have in their minds at all times the word “clarity”, which is what the practitioners in the legal profession believe that the bill delivers.

Adam Tomkins

Will the member take one more intervention?

John Finnie

No.

Oliver Mundell

We have had a robust debate on section 1, so I will not take up too much time. I have a few quick points to make. If we are going to focus on things being decided on the basis of intent, after investigation, that sadly means that families will already have been taken to court and been in contact with our criminal justice system before they get a definitive decision.

Alex Cole-Hamilton

The member said rather categorically that families will be subjected to the full force of the law before a judge determines whether they acted with criminal intent. Those decisions are taken daily by attending police officers. It is a fallacy to suggest that legions of parents will be marched through the courts to test the legislation.

Oliver Mundell

I understand the point that Alex Cole-Hamilton is trying to make but I am afraid that because of the way that the legislation is drafted, he cannot make that statement with any certainty. I, like most members, would expect that legislation passed by this Parliament will be enacted by—

Mike Rumbles (North East Scotland) (LD)

I did not intend to intervene, but from listening to the debate on his amendments, I am clear that Oliver Mundell objects to the bill—the amendments are simply muddying the waters. Would it not be more honourable for him to withdraw the amendments before we get to a vote and make his objections to the bill?

Oliver Mundell

I do not accept that. I speak on behalf of others on the Conservative benches as well as myself. There are members of my party—not all of us, but some—who would have liked to vote for the bill this evening. As an Opposition member of this Parliament I regularly vote against legislation at stage 3, but I lodge and vote for amendments to try to improve legislation. I want the legislation to be as good as possible, because it embarrasses the whole Parliament when sub-standard legislation is passed and we later see challenges to it in court.

As I will cover in my stage 3 speech, I am concerned that this legislation will be the subject of questions in the future because of the lack of adequate thresholds. We should make it clear that restraint is, in our view, different from physical punishment. Often, when looking at assault, things that look one way to a bystander can seem rather different if we know the circumstances. It is not proportionate or appropriate to wait until further down the line, once cases are already going through the criminal justice system, to decide whether there was criminal intent. It is better to make those considerations up front, and that is what amendment 2 is about.

The Presiding Officer

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. I suspend Parliament for five minutes to summon members to the chamber for the vote.

15:43 Meeting suspended.  



15:49 On resuming—  



The Presiding Officer

We move to the division on amendment 2

For

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smith, Elaine (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Griffin, Mark (Central Scotland) (Lab)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Bibby, Neil (West Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Johnstone, Alison (Lothian) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

The result of the division is: For 47, Against 64, Abstentions 0.

Amendment 2 disagreed to.

Amendment 3 moved—[Oliver Mundell].

The Presiding Officer

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smith, Elaine (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Griffin, Mark (Central Scotland) (Lab)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Bibby, Neil (West Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Johnstone, Alison (Lothian) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Harvie, Patrick (Glasgow) (Green)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

The result of the division is: For 47, Against 63, Abstentions 0.

Amendment 3 disagreed to.

Section 4—Commencement

The Presiding Officer

Group 2 is on prosecutorial guidance on the act. Amendment 1, in the name of Richard Lyle, is the only amendment in the group.

Richard Lyle (Uddingston and Bellshill) (SNP)

Amendment 1, in my name, has attracted the support of colleagues across the chamber. I think that that cross-party support is a reflection of the fact that legitimate concerns are shared by colleagues on all sides. I share those concerns.

Members will recall the rather forthright comments that I made the last time the bill was discussed. I must admit that I am concerned. I am the father of two and the grandfather of three, soon to be four, and I love them all to bits. However, I am aware that the bill has the backing of many colleagues, and I accept that the law is going to be changed in this regard at decision time.

In lodging amendment 1, I simply wanted to ensure that the operation of the law will continue to be proportionate in terms of its impact on families and children. Amendment 1 is very simple indeed. It establishes that, before the bill comes into effect, the Lord Advocate must publish clear guidance for the courts and the police to help them to navigate the new legal landscape and to continue to deal with parents sensibly.

I think that the guidance should do three things. First, it should set out very clearly

“what is a proportionate and appropriate response to the individual circumstances of a particular case”.

Secondly, it should outline

“the circumstances in which alternatives to prosecution should be considered”.

Thirdly, it should outline

“appropriate pathways that should be considered as an alternative to prosecution.”

I do not think that it is in anyone’s interests for people to be treated harshly under the law. I think that in many, if not most, cases criminalisation would be a step too far. The effects of a police investigation, court appearances and prosecutions on families in such scenarios would be hugely disproportionate, especially for the children involved. Criminalisation should be reserved for adults who have acted to harm a child; it should not be for parents who are simply ill informed

Good guidance by the Lord Advocate will avoid the scenario that has often been talked about in which a parent who taps their child on the hand or on the backside ends up with a criminal record. A tap on the hand would not be prosecuted under the current law on reasonable chastisement under section 51 of the Criminal Justice (Scotland) Act 2016. However, removing that defence will create ambiguity in the law that could lead to a disparity in enforcement.

In his submission to the Equalities and Human Rights Committee, Michael Sheridan of the Scottish Law Agents Society said that, under the bill, a parent could

“be guilty of assault, even if acting reasonably.”

The Lord Advocate himself has said that the impact of the proposed legislation on prosecutions is still “unknown”. The guidance that amendment 1 provides for would clear up any uncertainty and allay the public’s fears.

Amendment 1 reflects the approach that is being taken by the Welsh Government, which wants to remove reasonable chastisement from the law in Wales. Julie Morgan, the Deputy Minister for Health and Social Services, has said that the Welsh Government favours out-of-court disposals for parents who use mild physical discipline following a change in the law in Wales. The Welsh Government aims to establish a bespoke diversion scheme that prevents parents from being landed with a criminal record. The National Assembly for Wales’s Children, Young People and Education Committee has called for

“a clear pathway to divert cases that would currently be captured under the defence of reasonable punishment away from the criminal justice system, where appropriate and proportionate to do so.”

The committee states that such a scheme

“should focus on encouraging and supporting parents rather than penalising them”.

I quite agree. It seems to me that the Welsh Government’s approach is sensible and one that we should mirror here in Scotland, in the interests of parents.

There are strong feelings on both sides of this debate and I have witnessed that in the past 20 or 30 minutes. However, despite that, I think that there is common ground between MSPs today, regardless of our individual views or party affiliation. I do not believe that any of us wants ordinary, loving mums and dads criminalised—I do not want that. By supporting amendment 1, members will be putting a guarantee in the bill that sensible and proportionate guidance will be produced ahead of a change in the law. We should reassure parents that they will not face draconian punishments under a so-called smacking ban and show them that we politicians want to support them in bringing up their children.

I move amendment 1.

The Presiding Officer

We are at the agreed time limit, so I am exercising my power under rule 9.8.48 of standing orders to allow the debate to continue beyond the time limit to avoid discussion being unreasonably curtailed.

Alex Cole-Hamilton

The Liberal Democrats do not support amendment 1, because it is simply unnecessary. The 54 countries globally that have gone before us in embracing equal protection for their children have not seen legions of parents criminalised or marched through the courts. In fact, we heard of only eight prosecutions in New Zealand, four of which would have been prosecuted anyway without the change in law.

The Lord Advocate’s guidance is usually sought only in special and untested circumstances. A good example of that would be the Lord Advocate’s guidance not to prosecute victims of human trafficking who had been coerced into committing a criminal act by virtue of their having been trafficked. However, amendment 1 would ask the Lord Advocate to guide judges on a range of measures and tests that they already apply every day.

Oliver Mundell

Given the point that Alex Cole-Hamilton is making, does he recognise that the Lord Advocate has already said that he will produce guidance in relation to the bill and that he recognises some of the concerns that exist?

Alex Cole-Hamilton

Absolutely, and the Lord Advocate has every right to do that operationally. However, we do not therefore require it to be included in the bill, as amendment 1 proposes. We have had recent cause to trust the judgment of our Scottish judiciary. Judgment is exercised by the police first and then the judiciary in a very human way every day, ascertaining intent from the point that an incident is indexed. That often leads to an understanding of the circumstances around an alleged offence and a decision not to prosecute.

The debate on amendment 1 comes down to the nexus of the bill. The hyperbole that surrounds the arguments against abolishing the defence of reasonable chastisement stems from the fact that people believe that we will have thousands upon thousands of normal, loving parents marched through the courts. That argument simply does not stand up, given the international evidence. For that reason, the Liberal Democrats cannot support amendment 1.

Oliver Mundell

I am always concerned when people refer to laws in other countries without recognising that those countries often have substantially different legal systems with different prosecution policies. Given that the Lord Advocate came to Parliament and said that he will set out guidance on the bill, it is perfectly appropriate for MSPs to set out what we feel that guidance ought to cover in order to make the eventual law reasonably foreseeable for parents and allow them the opportunity to understand properly the types of behaviour that we seek to criminalise, rather than leaving that to be interpreted, particularly where no case law currently exists.

Much of what Richard Lyle said was sensible. I do not always agree with him on everything, but in this case he gave a measured explanation of the thinking behind amendment 1. Agreeing to the amendment would go a long way to addressing parents’ doubts. It is all very well to say that we have confidence in the prosecutorial procedures in this country, but the amendment will help parents to have confidence in the legislation that we are passing. It is our responsibility to ensure that people in this country understand what the law of the land is and what our intentions are.

16:00  



Gail Ross

We have already discussed the issue at length in the committee. We need to be careful with the language that we use—the bill does not introduce a smacking ban; it removes a defence, and we need to be careful that we say that time and again. The Law Society of Scotland has been mentioned. In its briefing for today’s debate, it states:

“As the current law stands, there is a lack of clarity for the public about what parents and others can and cannot do by way of physical punishment of children. That has ‘led to confusion amongst parents and carers.’”

The Law Society goes on to say:

“We support the aim of this Bill to provide that much needed clarity.”

That could not be any clearer.

Oliver Mundell

Will the member take an intervention?

Gail Ross

I am sorry, but I think that Oliver Mundell has had enough interventions today.

We discussed the issue at length in the committee. Amendment 1 would infringe on the Lord Advocate’s constitutional independence, and he is committed to producing guidance. The amendment is unnecessary, so I will not support it.

Pauline McNeill (Glasgow) (Lab)

I want to make a short contribution in favour of amendment 1. Richard Lyle gave a carefully considered speech. I will vote for the bill at decision time, but I have always had reservations about the message that we give to parents who, as Dick Lyle said, are doing what they think is best for their children. We will remove the defence in law, but we should not criminalise those parents unnecessarily.

We should be clear that the amendment relates to the Lord Advocate’s guidance for prosecution. I say to Alex Cole-Hamilton that it has nothing to do with judges; it is guidance for the prosecution. It is important to make that distinction. Once a case comes before a judge, they will make a determination on what they think the law is.

I accept Alex Cole-Hamilton’s point that there are few occasions on which we would want a prosecution. In the bill, the Parliament wants to send a clear message to parents that we want to be a progressive country. However, in the process, we do not want parents who are actually doing a good job of looking after their children to be unnecessarily criminalised. What harm would it do to put amendment 1 into the bill? At the end of the day, it could mean that we pass the bill with greater consensus.

Maree Todd

I am concerned about the implications of amendment 1 for the Lord Advocate’s independence. It is for the Lord Advocate to determine prosecutorial policy, to decide what guidance and guidelines he should issue to the police and to determine what should be published. Amendment 1 would require the Lord Advocate to produce and publish guidance. When the Lord Advocate gave oral evidence to the committee, he said that, if the bill is passed, he intends

“to issue Lord Advocate’s guidelines to the chief constable of Police Scotland on the investigation and reporting of allegations of assaults by parents on children.”

He added:

“Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases. When appropriate, that response may include the use of informal response by the police, recorded police warnings, diversion and other alternatives to prosecution.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 3.]

The Lord Advocate also said that the approach to prosecutions will be informed by the state’s responsibility to protect children from harm and by a consideration of the best interests of the child. The member can therefore be reassured that work is already in hand on guidelines to the police and on prosecutorial policy. It would not, though, be appropriate to place statutory obligations on the Lord Advocate—who acts entirely independently of Government in these areas—in relation to the production of prosecutorial guidance and guidelines.

Oliver Mundell

I am interested in getting further clarity on why the minister thinks that that presents a problem and how the proposal would interfere with the independence of the application of that prosecutorial policy.

Maree Todd

It is for the Lord Advocate to decide whether guidance and guidelines should or should not be published; that is part of his independence. In making that decision, I understand that he considers whether the publication of such guidance would be liable to prejudice the prevention or detection of crime.

Oliver Mundell

I am specifically interested in where the minister feels that the Lord Advocate would not be able to do that, and in why she feels that he would not be able to draft guidance that would meet that test.

Maree Todd

Let me be absolutely clear: it is up to the Lord Advocate to decide. However, there must be a risk that the publication of guidance that is intended to inform decision making by police and prosecutors could be used as a guide to how to avoid prosecution, or be understood in a way that would tend to undermine the clarity that the bill seeks to provide, and it is best to leave the judgment in that regard to the Lord Advocate.

Placing statutory obligations in the bill on the Lord Advocate in relation to the preparation and publication of guidance could set an unwelcome precedent for other areas. I would also be concerned about some of the consequences of the member’s amendment. Instead of the bill itself just stating the commencement date—one year after royal assent—the main provisions would come into force either one year after royal assent or when the Lord Advocate’s guidance is published, depending on which one of those was later. It would not be appropriate to have those provisions brought into force without a clear date being stated in the bill or in commencement regulations. That would create needless uncertainty and make it harder for the public to find out whether the law is actually in force. I am absolutely sure that that is not the member’s intention. Stage 3 should be about resolving any technical issues in bills, not creating new ones.

In conclusion, given the need to protect the independence of the Lord Advocate in this area, the undertakings that have already been provided by the Lord Advocate in relation to his intention to issue guidelines to the police and the uncertainties that the amendment might create, I ask Parliament to reject amendment 1.

John Finnie

I thank my friend and colleague Richard Lyle for coming to discuss the amendment with me in advance. He and I had a lengthy discussion, and I understand what motivated him to lodge it. I share the concerns about the circumstances that he spoke about in relation to himself and his family.

As I said to him at the time, I do not think that his amendment is helpful. He spoke about common ground, and of course there is a lot of it. I want to talk about the areas of consensus because I hope to allay some of his concerns. There is some geeky technical stuff in my argument, so I will read from my notes, but I want to say first that I understand where Mr Lyle is coming from.

The amendment would make the commencement of section 1 conditional on the issuing of prosecutorial guidance. However, it could give rise to uncertainty about whether, on a particular date, section 1 was in force. For a person to determine whether section 1 was in force, they would need to ascertain not just whether guidance had been published by the Lord Advocate but whether the guidance had fulfilled the requirements of the amendment. That could well be disputed, and the amendment provides no means for that dispute to be resolved. So, there would be no objective means for anyone to know whether section 1 was in force.

The amendment also contains an inherent contradiction between issuing guidance on policy, which must be in general terms, and ensuring that it is appropriate to the

“individual circumstances of a particular case”.

The Lord Advocate cannot say what would be appropriate in every conceivable set of individual circumstances.

I hope that Richard Lyle will take reassurance from the fact that, at stage 2, the lead committee heard from the Lord Advocate that guidance will be prepared and issued to the chief constable. The Lord Advocate said:

“If the bill is passed, I intend to issue Lord Advocate’s guidelines to the chief constable of Police Scotland on the investigation and reporting of allegations of assaults by parents on children. Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 3.]

The phrase “proportionate and appropriate” is very important, as it is the phrase that Richard Lyle used.

The Lord Advocate went on to say:

“we are already in discussion with Police Scotland about the shape and parameters of guidelines. That is under active consideration. I certainly intend to issue guidelines as near as possible to the coming into force of the legislation. I issue guidelines to the chief constable, and it is then his responsibility to disseminate the instructions to his officers on the ground.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 9.]

Importantly, the Lord Advocate also set out details of the current publicly available prosecution code, which contains comment on the public interest test and how the best interests of the child are central to decision making. We also heard about that from Police Scotland and social workers, who are at the front line of dealing with such issues. The amendment is therefore likely to cause confusion as to whether section 1 is in force and add no value to the work that the Lord Advocate has already confirmed is under way