Reasonable Chastisement

Part of Orders of the Day — Children (Scotland) Bill – in the House of Commons at 5:45 pm on 1 May 1995.

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Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West 5:45, 1 May 1995

The Law Commission provides an invaluable function, but we have a duty to examine its terms very closely. The test that I would apply is that any change in the law should not prevent the court from deciding that an excessive punishment of a child is unlawful.

I have some sympathy with the intention behind the new clause. It is my view that no violence to children should be justifiable under the guise of punishment. On the other hand, we certainly do not want to criminalise the great majority of parents who occasionally have to resort to a safe smack, if only to safeguard their unruly offspring. The law as its stands—both statutory and common law—already offers sufficient protection to children from assault by parents, teachers or others who have charge of children. We must resist new clause 1 as it may prevent the courts from arriving at the conclusion that they felt right in the circumstances.

The Law Commission, in its "Report on Family Law", discussed whether all corporal punishment should be made unlawful. It concluded—rightly in my view—that an outright ban would not have popular support, nor would it be enforceable. Instead, it recommended clarifying the law to make it unlawful to hit a child with a stick, belt or other object or in such a way as to risk causing injury, pain or discomfort lasting for more than a very short period of time. In essence, that is the principle of new clause 1. But I must make Labour Members aware that the formula that they have adopted would not necessarily achieve the objective sought.

New clause 1 would place unnecessary constraints on the power of the courts to take all the circumstances of each case into consideration. That has proved to be a key factor in recent case history. Some reports in the media of such cases may have been misleading. There was the unfortunate case of the girl whose thigh was bruised by a belt. In fact, in that case, the court did not say that it approved of belting children. It found that after taking account of all the circumstances, the act of the mother could not be categorised as criminal.

It has also been pointed out that a blow to the head of a two-year-old was found to be unreasonable. I find that entirely credible. A blow with a hand to the head may be much more dangerous for a young child than for an older child being struck with an implement on a less sensitive part of the anatomy. A court has to take many things into account in determining if punishment is reasonable, such as age, sex and known disabilities or weaknesses, the manner and method of execution, duration and the physical and mental effects of what has occurred.

New clause I may limit courts to only two factors: the use of the implement and discomfort lasting more than a very short period of time. I fear that that may force a court to come to a decision that it did not feel was justified given all the circumstances of the case. It may lead to a court finding against a parent who administered a light tap with some inoffensive—