There appears to be a basic mistrust of Scotland's parents and courts on the part of the Executive. It seems that, despite his embarrassing withdrawal over the smacking episode, Jim Wallace is still determined to deny parents the right to discipline their children in accordance with reasonable rules that they would impose in their own homes, subject to the fact that the courts have always taken a robust stance against those who seek to impose unreasonable chastisement on their children.
In its stage 2 deliberations, the Justice 2 Committee considered significant case law. In every instance, the sheriffs and judges got it absolutely right. The courts ruled, for example, that striking a youngster on the head is an assault—rightly so. In the case of the Hamilton schoolteacher who spanked his eight-year-old daughter because she had become terrified on a visit to the dentist, the sheriff ruled that that was assault. I submit that, in the circumstances, the sheriff was absolutely correct to do so. When parents lay into their children with belts, sticks, canes or miscellaneous instruments, the courts will invariably find that to be assault.
Everyone is anxious to avoid child abuse. Sadly, in the past two weeks there have been two classic cases of it. It is difficult to see how the legislation would have prevented such incidents.
The fact is that Scottish parents are invariably caring, responsible people who are intent on bringing up their children in a loving and caring environment in which discipline probably plays a very minor part. Some of the thinking behind the Executive's legislation would suggest that many parents are at best irresponsible and at times little short of sadistic. That is clearly not the case. The Executive should leave the matter to the good sense of parents and do so in the knowledge that the courts have not failed Scotland's children.
The amendments lodged by Mr Hamilton and Ms Cunningham demonstrate exactly the difficulties that will arise. For example, how does one define shaking with unreasonable force?
That is an entirely spurious and utterly silly contribution. Mr Fitzpatrick must try harder. He knows full well that that has no relevance to what is proposed in amendment 6.
I will return to the more constructive contributions from the SNP. Amendments 94 and 95 are well intentioned, but they underline how ludicrous the situation is. If the bill goes through
The issue of shaking, for example, is fraught with difficulties. If one shakes a six-week-old baby that would be totally irresponsible, criminal and assault. However, what about the 5ft 2in mother who shakes her 5ft 10in son, who is 15 years of age, because she finds him in possession of an ecstasy tablet? Do members seriously think that that would be an assault and that the matter should go before the court?
The Justice 2 Committee's report said that the Executive ought to consider that important point. However, if one looks at section 43 as a whole, is it not clear that the circumstances and the age of the child should be taken into account? When prosecutors are making that determination, they will consider the whole of the act and if the situation involving a 6ft boy and a 4ft 2in mother comes about, they can apply the common sense of the law.
That is perfectly true. It would be a discretionary matter for the fiscal. However, the legislation is currently in place to cope with such situations. Why create a problem where none exists? That is what the bill would do.
I am not for one moment suggesting that we should turn a blind eye to parents assaulting their children. I am saying firmly that I believe, based on experience and on the Justice 2 Committee's study of the case law, that the current law is perfectly adequate to protect children against abuse. I see that Cathy Peattie is shaking her head; we will have to agree to differ on the point.
If the bill goes through with its current provisions, there will be all sorts of difficulties and interesting appeal points. The usual outcome of that is to make judges famous and lawyers rich and to bring the law of Scotland into disrepute.
I move amendment 6.
If this makes lawyers rich, I might support it in my future career.
This is perhaps the most controversial part of the bill. It has had a chequered history throughout
The first option that is before members is the bill as it stands. I cannot see how that might be workable, given the problem mentioned by Bill Aitken of defining shaking and the nonsense stance whereby a 15-year-old boy could be treated in the same way under the law as a two-year-old child. That is daft.
To take the second option and remove the section altogether, as Bill Aitken proposes, is equally daft. The committee has accepted that there is nothing to be lost by putting this into statute. Let us build on that position.
Amendment 95, in the name of Roseanna Cunningham, offers the way through this. It aims to do something about the definition of shaking. Her attempt to add the factor of reasonable or unreasonable force strikes me as eminently sensible. It would require the court to look at all the circumstances to decide what is reasonable and what is not.
Has Mr Hamilton conducted an assessment of any medical evidence as to what might comprise reasonable force in the shaking of an infant child? If we want to end shaken baby syndrome, is it not the case that we must stop people shaking infant children?
There are two problems with that. First, Mr Fitzpatrick is right to say that it is difficult to define what is reasonable and unreasonable, but that is a matter that goes right across the Scottish legal system and which is addressed by the courts every day. It is not beyond the wit of mortal man, or the wit of the courts, to decide what is reasonable or unreasonable in all the circumstances of the case. Secondly, it is really not good enough for a legislator to come forward with an emotional case, on which we all agree, and then to say that that somehow sweeps before it all reason and all tempering of legislation. That is not legislation that I would wish to be part of.
Amendment 95, although not perfect in Mr Aitken's view, offers us the way through. It gives us the opportunity to consider a reasonable moderation of the bill. I do not think that the bill as it stands will make for good law, and the last thing that the Parliament needs is more law that could be described as unnecessarily divisive and daft. Section 43 deserves our support overall, but
I have some sympathy with Bill Aitken's comments and those of my colleague Duncan Hamilton in addressing themselves to the generality of section 43 and to the question whether we should really be having such debates. Once we open up the debate on definitions, we get to precisely the problem that we were all concerned about, arguing about what is in, what is out, how it will be construed and what it will mean in court.
With respect to Brian Fitzpatrick's intervention, the situation that is being cited as the most serious one—the serious shaking of infant children to their severe injury or indeed to their death—is already dealt with in our courts from year to year. It is not entirely fair to use the most extreme, emotive example, particularly when it is one that the current law deals with, when we are trying to consider some of the definitions of what is already in section 43.
"with use of unreasonable force".
Reasonableness is something that will take into account all the facts and circumstances.
I suspect that no reasonable force could be used on a six-month-old child, but that reasonable force might very well be used on a 15-year-old child. There is a difference. The test of reasonableness is used daily in our courts and is a test with which all our judiciary and all those who practise in our courts are comfortable and familiar. It does not come out of left field. What amendment 95 proposes is not particularly unusual. The courts are already completely familiar with the test and will accept it as perfectly legitimate in the legislation, as it means that the test will always be in the face of the facts and circumstances that are before them in particular cases.
I heard the general argument on the issue at an earlier stage in the bill's proceedings and am not entirely sure that there is much point in going down the line that Bill Aitken is going down or indeed that my colleague Duncan Hamilton wants us to go down. We need to focus on specific areas
I wish to press amendment 95.
My views on the subject are well known and it will be no surprise that I rise to speak against all four amendments to the section.
Section 43 seeks to clarify further the existing law—that is not in any doubt and has been constantly stressed at stages 1 and 2. I strongly disagree with what Bill Aitken said about the existing law, as defined by the Children and Young Persons (Scotland) Act 1937, being adequate and applied equally by our courts. I have previously stated that, in my professional experience, I have come across a case of a seven-year-old child who had clear injuries to their bare buttocks that were caused by the buckle end of a belt. There was a prosecution, but the court found that the injuries were incurred in the course of reasonable parental chastisement.
That is the problem with the definition of reasonable—as Brian Fitzpatrick and Richard Simpson mentioned, that problem is at the heart of amendment 95. There is almost a duplication of the difficulty. The court would be asked to define what is reasonable and what is unreasonable. Putting in the bill
"shaking with use of unreasonable force" presupposes that it is okay to shake with reasonable force. That strikes at the example that Brian Fitzpatrick used in respect of an infant being shaken. We should leave section 43 as it is, as its intention is to clarify the existing law.
The question of reasonableness or unreasonableness will emerge throughout the debate. Why is it that, uniquely, in the area of law in question, Scottish courts would be unable to reach a decision using all the facts of a case as to what was reasonable or unreasonable?
As I have indicated, the problem is
In recent weeks, we have spent a considerable amount of time considering the Land Reform (Scotland) Bill, which secures in statute law rights that we believe that we had. In many ways, to reject putting into statute law through this bill things that we believe already exist out there in another form is entirely misplaced. If today is an opportunity to restate and make it clear where we stand on the physical chastisement of children, we should take that opportunity.
I also have a personal dilemma. As a nurse, I had three people with brain damage in the ward in which I worked. There were different sources for that brain damage, but in two cases the brain damage had resulted from physical trauma. [Interruption.]
A practical difficulty is that someone may exercise reasonable force in shaking someone without knowing that the person has a particular vulnerability associated with being shaken. That might happen even to a 15-year-old. A thin skull may crumple under a light tap or after reasonable shaking. Frankly, the only safe way to avoid unreasonable damage to people is to avoid shaking altogether.
I am afraid that, to some extent, I part company with my colleagues on the amendments, as I have reflected more fully on the matter over the considerable period that we have taken for our consideration of the bill and after hearing the evidence, which was coloured by my personal experience.
Rather than repeat the points that Bill Aitken made, I want to look back at the reasons why the Parliament was formed. I am told that the Parliament was set up because we wanted to get nearer to the people. I have therefore decided that, in this debate, I will use one or two of the multitude of letters that I have received about the issue.
Members will realise that, as a South of
"This Bill—should it be passed—would see normal loving parents being prosecuted for trivial incidents.
I am a mother of 5 healthy and well-balanced children. If this Bill had been passed when my children had been younger then I would have been prosecuted."
That is typical of many letters that I received.
"It seems to me that if this Bill goes through as it stands it will Criminalise parents ... as it takes no account of trivialities."
I also received a letter from Jessie McMahon, who is Karen Gillon's constituent. Mrs McMahon wrote:
I draw Stewart Stevenson's attention to the fact that Mrs McMahon worked in community child health—
"I believe the proposed legislation would result in harassment and unjust conviction of normal, caring, conscientious parents."
Members need no further words of mine. I will simply stick by the words that I have read out and suggest that Bill Aitken's amendment 41 has got it right.
There is a touch of disproportionate outrage in the amendments that have been lodged by Ayatollah Aitken and others. Bill Aitken would send out the message that some MSPs believe that it is justifiable to hit children with implements or to shake babies so as to cause brain damage or to bash them across the head.
Following up on Phil Gallie's comments, I also received one or two of those letters. One of the letters indicated that, in the view of a loving parent of the kind that Phil Gallie mentioned, a slipper or a wooden spoon could be described as a benign instrument with which children might be hit. I ask members to bear that in mind.
I do not know how much clearer we need to be, but we are not in favour of abusing or battering children. There is a distinction to be made. Please do not portray us as thinking that it is all right to batter children. That is not right in anybody's book.
However, the argument has been whether we should apply certain regulations to parents or whether, to take Bill Aitken's approach to the matter, there is an area of life in
Sorry, I have only a short time.
The argument that section 43 will lead to the prosecution of loving parents for gently shaking a child's arm is simply not correct. Section 43 creates no new offences and no new penalties; it simply gives children the same protection against violence as adults have. If there is no criminal intent or recklessness, if the assault is trivial or if there is no public interest in prosecution, the procurator fiscal will not prosecute and the courts will not be entitled to convict.
Parents who abuse or beat their children, hit them with implements or cause lasting damage to infants most assuredly will and should be prosecuted. They will no longer have the benefit of arguing that something that would be a serious assault on an adult is justified by the excuse of reasonable physical chastisement when done to a child. That is the clear message that must go out today. I urge members to reject all the amendments to section 43.
I hope that members will reflect seriously on the matter and agree with me, and—more important—with the substantial body of medical evidence, that shaken baby syndrome occurs not only in cases of severe or serious shaking, but also where there has been only minimal shaking. Roseanna Cunningham came close to acknowledging that. The only way in which to stop such minimal shaking is to provide explicitly in legislation that one cannot shake one's baby. Our priority must not be 15-year-old rugby lads, but the circumstances of vulnerable young children and babies.
In a moment.
In a previous existence, I had a tremendous interest in cases of head and brain injury. I sometimes had to act in the interests of children who had been the victims of what was claimed to be reasonable action when those poor little bundles turned up at Yorkhill hospital and elsewhere. The parents said, "I didn't mean to do that to my baby, doctor," but the child often ended up with lasting head injury and people such as me had to try to put order and organisation back into
We must not listen to the bible-based nonsense from the far right about implements and the like; we must act responsibly to protect children in Scotland. Every year, 40 or so children in Scotland, 14 of whom are under the age of one, receive non-accidental head injuries. We must do something about that.
In a minute.
We have heard much about reasonableness. In another place and at another time we could have a discussion about the jurisprudence of reasonableness. Parliaments around the world have innovated on duties of reasonableness. They have said that there is an absolute duty to comply and they have created duties of reasonable practicability. However, reasonableness is not the be-all and end-all.
Before I sit down, I will let Phil Gallie interrupt.
I go along with what the member says about young babies—the law does not seem to protect them and there have been tragic deaths in recent times. However, can the member point to the part of the bill that mentions young babies? It deals with children up to the age of 16 and, surely, there is a massive difference. If the provisions on shaking had been confined to young babies, Mr Fitzpatrick might have received some sympathy from the Conservatives.
There is no reason to assume that other matters might not come into play in relation to a 15-year-old hulk. I am concerned about young babies, who will be protected under part 7, which deals with the physical punishment of children who are under 16. I would be delighted to have Mr Gallie's support for the protection of such children.
I declare an interest as a subscribing member of the Children are Unbeatable! alliance.
Many of us in the chamber, and throughout Scotland, are deeply disappointed by the dilution and diminution of section 43 during the stages of the bill. At this point, we must say, "No further." I should like to introduce some evidence to the chamber on the effects of shaking on children and young people—I could have produced similar evidence for the other subsections of section 43. I shall give a definition of shaken baby syndrome, although, at this point, given the references that there have been to 15-year-old hulks, I should remind members that only last week a father was
Shaken baby syndrome is the leading cause of death in child abuse cases in the United States. The syndrome results from injuries caused by someone shaking an infant, usually for five to 20 seconds. At this point, I will pause for five seconds to make members aware of how short a time that is.
I shall give members some information from the National Institute of Neurological Disorders and Stroke in the USA, which has described shaken baby syndrome. It says that the baby's brain rebounds against his or her skull, which might cause bruising, swelling and bleeding. That damage is intracerebral and might lead to permanent severe brain damage or to death. It states that prognoses for shaken children are poor. Most children will be left with considerable disability, and retinal damage might cause loss of vision. If the child survives, he or she might require lifelong medical care for brain damage injuries, such as mental retardation or cerebral palsy. To address how we prevent the problem, I shall quote from the National Institutes of Health of the United States, which states:
"Never shake a baby or child, whether in play or in anger."
A baby should never be shaken as reasonable chastisement, and a child should never be shaken with reasonable force.
We are duty bound by morality and by our subscription to the United Nations Convention on the Rights of the Child, in particular by articles 2, 3, 19 and 28. I also remind members that we are not lawyers; we are legislators and we set the tone for the judiciary.
I shall finish with a quote from the zero tolerance booklet that we all received today. It states that, in 1800,
"Judge Buller ruled that a man could beat his wife with a stick as long as it was no thicker than his thumb. It was considered acceptable at this time that men would need to use violence to control and punish their wives."
Change is possible; we must make it happen.
We have heard several passionate speeches and they all dealt with extreme cases. However, it is not extreme cases but trivial cases that concern the people who are writing letters to me and to other members.
I will pose a number of questions to the minister about trivial cases. As Bill Aitken asked, if a mother shakes the arm of her 15-year-old son, will she be committing an offence under section 43(3)? It appears that she will. What will the Deputy Minister for Justice say on the record that
When a parent is prosecuted for assault, the court must consider the circumstances if the assault falls under section 43(1), but if it falls under section 43(3) the courts will be forbidden from considering the circumstances in deciding whether an offence has been committed. Will not that lead to ordinary parents being turned into criminals over trivial incidents?
I would also like to know what constitutes an implement. If a mother throws a pillow at her son, will she be committing a criminal offence in every case? What about a mother who clips her son with a rolled-up newspaper? Is she committing an offence? There is also a point about the scale of prosecutions. How many prosecutions are envisaged in the first three, four or five years after the bill's enactment? People are not concerned by the extreme cases that we have heard about today, but about the trivial cases that take place in every household in the country every day. Are we going to criminalise loving parents? The minister must tell us.
Opinion on the issue was polarised in the evidence that the committee received; indeed, opinion on how to proceed was polarised among committee members. I am not going to criticise the point of view that Bill Aitken and Duncan Hamilton argued at stage 2, that current provisions already deal with the matter. Certainly, the ruling in the A versus UK court case gives sufficient clarity in that respect.
Nevertheless, a majority on the committee accepted that there is a case for reducing the number of circumstances in which parents could claim that action that would otherwise be classed as an assault is justified because it represents reasonable chastisement. I really believe that a blow to the head, the use of an implement or shaking a young child does not come into that category, and that parents should therefore be prohibited from such actions.
Murdo Fraser used the example of a pillow. I am sorry, but a pillow that is used by a parent as an implement to hit a young child on the head could cause severe injury and damage. Murdo should not have mentioned the example.
Will the member confirm whether he thinks that a mother who clips her 15-year-old son on the shoulder with a newspaper should be prosecuted for committing a criminal offence?
One could make the same argument if a newspaper were used against a
I supported the majority view of the committee on the matter because I believe that it is the right view. Amendments 6, 94 and 41 should be rejected.
"with use of unreasonable force" was a way of dealing with this serious issue. I listened carefully to what she had to say, but the purpose of the legislation is to give more clarity on the matter. By agreeing to amendment 95, we would make matters less clear. After all, shaking a young child causes damage, so we should give clarity by completely prohibiting such an action. I encourage members to reject amendment 95.
The debate has been interesting, and members have raised many points that I will not repeat.
The removal of section 43 in its entirety, or the removal of section 43(3), would send out entirely the wrong message. I appreciate what Roseanna Cunningham and other members have said about the law and the courts. However, health visitors, child support workers, nursery nurses and others who are involved with young parents must give a very clear message that certain things are not allowed. Without that, I can tell Parliament that we will be sitting here next year—at least I hope that some of us will be sitting here—discussing the fact that another 14 children have suffered brain damage. I point out to Roseanna Cunningham that, for every 14 such cases that come to court every year, hundreds of cases involving minor damage never come near the judicial system. Without the total clarity in the law that will be provided by the very modest measure in the bill, there will continue to be a substantial number of cases of children suffering minor damage that will never come to court.
As a junior doctor in a paediatric ward, I saw some really severe cases in this regard. However, as a general practitioner, I saw some of the minor damage that had been done to children—sometimes inadvertently—because parents lacked appreciation of the damage that they could cause. Parliament should send out a very clear message that we should not shake children, hit them on the head or beat them with implements. That will serve Scotland well.
I know where the minister is going with the bill on this issue, and I should make it clear that I am on board. After all, we do not want to protect anyone
Section 43(3) uses the words:
"If what was done included or consisted of—
(a) a blow to the head;
(b) shaking; or
(c) the use of an implement".
I say to the minister that it is clear to what a "blow to the head" and "use of an implement" refer, but I have problems with the word "shaking" because I do not think that it is clear to what that word refers. It worries me that "shaking" does not define anything. I am worried, for example, that mothers and fathers who perhaps take their children on their knees and dandle them are doing a form of shaking. Furthermore, the act of cuddling a baby and shoogling it backward and forward when putting it to bed is a form of shaking.
I am not a lawyer and I do not want to weaken section 43. I am the last person in the world to defend anyone who damages a child, no matter what the child's age, but I want legal clarity about such acts and I do not think that "shaking" provides such clarity. The word "shaking" would protect some people, but it will frighten other people away from doing pleasurable things with their children. I am worried about that.
The member quoted paragraphs (a), (b) and (c) from section 43(3), which refer to a "blow to the head", "shaking" and the "use of an implement". Does Mr Paterson accept that those paragraphs must be read in conjunction with what follows them in section 43—which states that a court must consider the specific acts referred to in paragraphs (a), (b) and (c)—and that together they further clarify the legal position?
Mr Barrie has pointed out my problem, which is that that part of section 43 does not clarify the legal position because there is no definition of "shaking" that mentions what damage that would cause a child. It would be better if a word such as "excessive" were included, which would point out the difference between shaking that damaged a child and harmless shaking. It is unfortunate, but "shaking" is the kind of word that tabloids use to describe an act that damages a child. When we merely cuddle or play with a child we are actually shaking them.
It is clear that, although Gil Paterson has looked at the bill, he has not looked at section 43(1), which begins with the words:
"Where a person claims that something done to a child was a physical punishment carried out in exercise of a parental right".
Section 43(3) uses the words:
"If what was done included ... shaking".
If such shaking were done as a physical punishment, subsection (3) would be activated. I do not think, by any stretch of the imagination, that rocking a child to sleep could be considered to be a physical punishment.
I am trying to illustrate how absurd the use of the word "shaking" is. The minister made the point well that I am trying to make, which is that we must go beyond the use of simple word "shaking", so that we can let people know that they can actually hold their children.
It is always unfortunate if our actions cause alarm to decent citizens. It is clear that many people who have written to members are concerned, so it would be helpful if the minister could make it clear to them that section 43 will not mean that people who, for example, grapple with a hysterical teenager to control him or her and accidentally hit them on the head will go to jail. There might be other relevant examples. People are concerned about the issue and need reassurance. If the ministers will say that courts would be guided not to act too literally in interpreting the bill such that every blow to the head had to be prosecuted, that would be helpful.
There is consensus that the Executive did the sensible thing by removing section 43 as it was drafted. However, it is worth talking through the reasons why the committee chose, on balance, to include the provisions that it did.
In a way, I have to stand up for what the Opposition—apart from Murdo Fraser—is saying because I do not believe for a minute that Duncan Hamilton, Stewart Stevenson or Bill Aitken believe that we should have laws that would provide for injuring children. The difference lies between those who think that the law is adequate and those think that it needs to be strengthened. Murdo Fraser misses the point. The Justice 2 Committee did not want to criminalise innocent parents, which is why we asked for the removal of a complete ban on physical chastisement. The debate is about whether blows to the head, shaking or the use of implements should be mentioned specifically in the act. I think that they should be.
Fiona McLeod talked about a number of sad cases that she has had experience of. Again, however, I must say that I believe that the law of
We are not lawyers, but we are legislators and we should approach the bill properly. Subsections (1), (2) and (3) must be read together. It is clear that, in determining whether to prosecute someone for shaking a child, a prosecutor will read subsection (2) and accordingly have regard to
"the nature of what was done ... the circumstances in which it took place ... its duration and frequency ... any effect (whether physical or mental)" and "the child's age". What could be clearer than that? Subsection (3) must be read along with subsection (2), which means that the law will be absolutely crystal clear.
The law is pretty strong when it comes to protecting children. However, I decided for the avoidance of any doubt—there are cases in which there has been doubt—that it is right specifically to mention blows to the head, shaking and the use of implements. The Justice 2 Committee received evidence from people who thought that using a wooden spoon to chastise a child was acceptable and we were concerned about the shaking of young children. Cases in which the use of any such elements must be defended are rarely trivial. We are talking about what parents should be able to say in their defence.
The Scottish Executive should be commended for the sensible position that it has adopted and which the vast majority of people support. We are debating what provisions should be in the act, not which party is most in favour of protecting children—if we were to take that as the subject of the debate, we would have a dishonest debate.
When we come to vote, we should vote on what we think are the most effective provisions. I urge members to support the present provisions, which were agreed by the majority of the Justice 2 Committee.
We can take it as read that we all abhor violence towards children and that we seek to achieve the same objective, which is to ensure that violence against children is seen as being unacceptable. We are arguing about the best way in which we can word the law to ensure—in so far as we are able—that that happens.
I believe that Roseanna Cunningham's amendment 95 should be supported. As Gil Paterson rightly argued, "shaking" does not have a clear meaning. On the margins, and in relation to trivial incidents in particular, it will be extremely difficult to distinguish between restraint and shaking.
I accept the argument that Pauline McNeill and one or two others have advanced, which is that one must read the section in its entirety. It is perfectly correct to say that the first requirement for prosecution is that something has been done to a child as physical punishment and that the circumstances must be taken into account. That is all correct and good, but what about when a young child has a tantrum in a supermarket and the parent restrains the child by bringing both his arms down to his side, telling him to be quiet and emphasising the point? Is that restraint or shaking?
The problem is compounded by the fact that section 43(3) says that, when shaking is said to have occurred,
"the court must determine that it was not something which ... was a justifiable assault".
That seems to remove the element of judgment that is surely best left to the courts. I support Roseanna Cunningham's amendment 95 that would mean that the court would so determine only in cases in which "unreasonable force" was used. To answer Brian Fitzpatrick's question, it seems to me to be perfectly obvious that zero force would be appropriate in the case of a baby that is a few months old but that, in the case of a 10-year-old, a degree of force might be appropriate. Although I understand members' intentions in using examples that we all abhor, such as those that Fiona McLeod used, they are not really relevant to the point that we are discussing.
We all want to send a message to the people of Scotland that violence towards children is unacceptable. Publicity campaigns are the means by which we send messages. When we draft legislation, we must create a form of words that can be enforced objectively and fairly. Above all, we must leave our judges, not our politicians, to be the arbiters of what is or is not a crime in our country.
The policy objectives of section 43 are unequivocal: to provide protection to children; to clarify the law for parents on what constitutes reasonable chastisement and, ultimately, to take steps towards reducing violence in society. The Executive is committed to those objectives and I think that all parties would share them.
It is fair to say that section 43 has provoked strong responses. It has, as Phil Gallie said, provoked a large volume of correspondence, much of which is from ordinary parents as well as organisations and lobby groups. It is also clear that views are polarised. We have heard from some that the Executive's proposals do not go far enough and from others that they go too far. It would be unfortunate if the push and pull of those
The Executive has listened carefully to parents' and members' views on the proposed outright ban on smacking small children. We responded by removing the specific ban on smacking under-threes, but we have promoted age as a factor that should be taken into account in considering whether a punishment that is administered to a child could be deemed to be reasonable.
The Executive is firmly committed to the remaining provisions in section 43 and believes that they are necessary to clarify the law and protect Scotland's children. The proposed ban on the use of implements, shaking and blows to the head will remove the most harmful forms of punishment. Such actions can be easily misjudged, especially in the emotionally charged circumstances that characterise many physical punishment incidents and cases of serious harm.
We know that the vast majority of parents back the provisions. Phil Gallie talked about parents' good sense, so he might wish to reflect on the fact that, in the System 3 research that was undertaken, 84 per cent of parents agreed that there should be a ban on blows to the head, 79 per cent of parents agreed that there should be a ban on the use of implements and 79 per cent of parents agreed that there should be a ban on shaking. We reflect the good sense of parents that is reflected in those figures.
That is clear. I will come in a moment to the ogres that have been raised, such as the trivial tap or the rugby hulk who gets shaken by his 4ft 11in mother. I think that, during one exchange, the mother shrank by 3in and the hulk grew by about 3in.
Paragraph 137 reads:
"The Crown Office took the view that prosecutors would have to consider whether to prosecute on a case by case basis, taking into account the public interest and sufficiency of evidence. 'Triviality is one of the factors that procurators fiscal are required to consider in the context of any decision to prosecute'. The Crown Agent said that he would be surprised to see any significant increase in the number of prosecutions if section 43 is enacted."
If the good sense of procurators fiscal and Crown agents is adequate for the purpose of interpreting the proposed legislation, why do not we leave it to the good sense of the prosecuting authorities to determine the entire matter in line with the common laws of assault that have applied for 300 years? Why does the minister want to restrict prosecutors in one area but give them discretion in another? There seems to be no logic in that.
On the contrary, there is a considerable amount of logic in that. If discretion is being used as to what is and is not trivial, that is one thing; if discretion is being used when damage has actually been done to a child, that is another. We are trying to protect children; we do not want cases to become a matter of a debate in a courtroom when damage has been done, which would be to try to shut the stable door once the horse has bolted.
We have a responsibility to listen to parents in this regard. We have listened, and we have responded. I think it was Fergus Ewing who said that the matter is more appropriately dealt with by information campaigns than by legislation. I believe that there should be an information campaign on positive parenting and alternative disciplinary tactics, which will be as important as legislation in changing behaviour. However, if we had relied only on information campaigns to stop drink driving, where would we be? We would have had more drink-driving related deaths on our roads. We believe that legislation is necessary.
An information campaign is currently being developed to ensure that parents are informed about the effects of physical punishment, and to guide them towards positive forms of parenting and discipline. As I said, information alone will not suffice. A dual approach of information and legislation is required in order to protect Scotland's children and to clarify the law on what constitutes reasonable chastisement.
Parents told researchers that they did not know what the law was in relation to physical punishment. When parents were asked how much they knew or understood about the current law on smacking, 63 per cent said that they knew not very much and 18 per cent said that they knew nothing about it. Section 43 will make it clear what is acceptable and what is not lawful.
Does the Deputy First Minister agree that we should be reasonably content that most parents—who do not smack or beat their children and do not hit them over the head—are not particularly familiar with the criminal law in relation to such acts, and that we should dispense with the extraordinarily bizarre argument that has been put forward from the Tory benches that, somehow, because ordinary reasonable
One of the most amazing comments from Bill Aitken was almost a suggestion that all parents treat their children wonderfully well. We know from the available figures that, regrettably, that is not the case. It is disappointing that, in lodging amendment 6, Bill Aitken has not reflected on the figures about what parents really think. The research that was published last year shows that an overwhelming majority of Scottish parents agree that hitting children on the head, shaking them or using implements on them should be illegal.
However, I admire Mr Aitken's resilience: he has opposed section 43 from the outset and has stuck doggedly to his opinion throughout. It is unfortunate that the same cannot be said for the amendments that have been lodged on shaking. We are being asked to consider either removing the specific ban on shaking or qualifying it to
"shaking with use of unreasonable force".
No doubt the concerns that have been expressed have been motivated by images of meek mothers shaking great big rugby-playing sons, but such concerns trivialise the issue. At the other end of the spectrum, as was eloquently highlighted by Fiona McLeod and Brian Fitzpatrick, a tired and frustrated mother can with a moderate shake easily damage an infant.
I will quote from the BBC's "Medical notes" web page, which says that shaken baby syndrome
"occurs when an infant is forcibly shaken, usually by the shoulders, causing the child's head to flop back and forward ... A baby's head is large and heavy making up about 25% of the infant's total body weight. Its neck muscles are too weak to support such a disproportionately large head.
The force of the head movement can tear blood vessels that bridge the brain and skull, because these are fragile and immature ... When shaking occurs, the brain bounces within the skull cavity bruising the brain tissue.
The brain swells, creating pressure and leading to bleeding at the back of the eye."
That was one of the tamer descriptions of shaken baby syndrome. There is a real danger that, by focusing on the trivial, we will lose sight of the critical other end of the spectrum and miss an opportunity in the bill to protect small and vulnerable children from inadvertent but lasting damage that is caused by a forcible shake.
I have no intention of trivialising this matter. However, I pay due regard to what Gil Paterson said about the word "shaking". The minister has tried to address that concern by
Regrettably, Brian Monteith has trivialised the issue. As I said to Gil Paterson, shaking a child will be an offence if it is done as a physical punishment. I did not see the programme to which Brian Monteith refers, so I do not know whether the shaking was a physical punishment or something else. It would not be appropriate for me to comment on something that I have not seen.
As Brian Fitzpatrick stated, each year 40 Scottish children receive non-accidental head injuries and 14 children aged under one receive severe head injuries as a result of shaken impact syndrome. We do not know whether those injuries started out as misjudged physical punishments, but we believe that the law must protect children from shaking. Once the damage is done, there is little consolation in arguing in court about whether the shaking was reasonable.
How are parents to judge where on the spectrum the division lies between shaking that produces lasting damage and a less harmful shake? We cannot know at what age or stage a child's vulnerability to a minor shake recedes. As Yorkhill hospital's Professor Stone advises:
"there is no such thing as safe shaking or reasonable force."
It would be a sorry day if members of the Parliament were unable to support legislation to ban shaking. I do not subscribe to the view that larger children are punished physically by being shaken or that the courts will be clogged by parents accused of trivial shaking offences. I believe that children need protection from the danger of brain damage through misjudged shaking.
Amendment 95 appears to be motivated by the desire to concentrate on the most severe cases of shaking. However, it would add very little to the existing common law and provides the sort of definition that would make the law unclear. For that reason, I ask the Parliament to reject it. Stewart Stevenson came to much the same conclusion—we cannot always tell what degree of force may lead to damage.
We should say clearly that shaking is dangerous and should not be used on children, as it is impossible to judge its effects on developing
I also hope that amendment 94, in the name of Duncan Hamilton, will not be moved or will be resisted. I do not expect Bill Aitken to withdraw amendment 6. However, the important message that we want to send out about protection of our children would be seriously undermined if we followed the Tory route today.
This has been a mature and measured debate, in which one or two issues have been stressed repeatedly. The issue of shaking has certainly stirred the Scottish Parliament.
Amendment 6 is an attempt to clarify the law, as the law needs to be clarified. The people who should clarify the law are the people who administer the law—the judges of Scotland. Time and again, I have made the point that in the past there has been no significant problem in this area. I listened to what Scott Barrie had to say, but I am surprised that the case to which he referred was not appealed by the Crown. Along with all reasonable people, I believe that the necessary legislation is in place.
Stewart Stevenson and Brian Fitzpatrick—from a professional perspective—pointed out the real dangers that shaking poses. All members accept that. However, Gil Paterson indicated that shaking need not be punitive.
Children are very robust. Some children are wild and enjoy wild horseplay. In such circumstances, inevitably there will be some shaking. The logic of what the minister is proposing is that shaking in a punitive sense would be illegal but shaking that occurs during the rough and tumble of any family would not be an offence. However, at the end of the day, the damage might be the same.
I am sorry to repeat myself but I go back to the circumstances that the member and others are talking about, and the distinction that they want to draw. Does Bill Aitken not think that the nature, duration and frequency of what was done to a child would allow prosecutors to determine the difference between the situation he describes and when injury is done to a child?
I agree. However, there is an undeniable confusion of the issues, which is why the matter should be left alone. No one should be shaking or striking young children on the head. I do not think that anyone in the chamber disagrees with that premise. Time and again, courts have established that that is unacceptable behaviour.
I am sorry but I must move on, as my time is restricted.
Donald Gorrie raised a genuine point. What happens when someone has to cope with someone else who is hysterical, grabs that person and attempts to shake them? Again, there is confusion. That is not a punitive action yet, arguably, that person could find themselves in court.
Murdo Fraser and George Lyon got themselves into a little dispute over the use of a newspaper. Common sense declares that a newspaper driven hard into the solar plexus of a one-year-old child would clearly be an assault, whereas a whack across the back of a 15-year-old would not be. Again, the courts would arrive at that inescapable conclusion.
We have to ask whether there is a problem of children being abused by their parents. The answer is that it might not be a wholesale problem but it is occurring rather more frequently than most of us are comfortable with. We know that it occurs through high-profile media reporting of some horrific cases. We are all anxious to prevent such cases.
When we read the tragic circumstances of the death of little Chloe Bray, which culminated in a trial at the High Court in Edinburgh last week, does anyone seriously suggest that the proposed legislation would prevent such cases? The fact is that it would not, much as we might like to think it would. On that basis, the proposed provision is not necessary because it will not help anyone in that situation. As they stand, the proposals are flawed and will be shown to be flawed. We should leave the matter to the courts to determine.
The SNP's amendments 94 and 95 about the definition of shaking highlight the issue. I am sure that they are a genuine effort to clarify matters but they simply show how confused the issue is. In time, there will be more and more difficulty with the issue and more and more appeal points—I do not know where it will end.
I keep coming back to the point that the law of Scotland is perfectly adequate to deal with the question of abuse. Let the law of Scotland get on with its job. Mr Wallace slightly misdirected members when he said that I said that there are no problems. The vast majority of parents conduct themselves in a responsible and loving manner. Allow them to get on with it.
Division number 10
For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Mundell, David, Quinan, Mr Lloyd, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Young, John
Against: Adam, Brian, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Campbell, Colin, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Hamilton, Mr Duncan, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Reid, Mr George, Robison, Shona, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen, Wilson, Allan, Wilson, Andrew
Division number 11
For: Adam, Brian, Aitken, Bill, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, Matheson, Michael, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Morgan, Alasdair, Mundell, David, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Reid, Mr George, Scanlon, Mary, Scott, John, Sturgeon, Nicola, Swinney, Mr John, Welsh, Mr Andrew, Wilson, Andrew, Young, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Gorrie, Donald, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan
Abstentions: Robison, Shona, Stevenson, Stewart, Tosh, Mr Murray
Division number 12
For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Mundell, David, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Young, John
Against: Adam, Brian, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Campbell, Colin, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Mrs Margaret, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Godman, Trish, Gorrie, Donald, Hamilton, Mr Duncan, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Quinan, Mr Lloyd, Radcliffe, Nora, Raffan, Mr Keith, Reid, Mr George, Robison, Shona, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinney, Mr John, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen, Wilson, Allan, Wilson, Andrew