Our policy work on equal protection

Equal protection from assault is the law in Scotland

On 3 October 2019 the Children (Equal Protection from Assault) (Scotland) Act was passed by the Scottish Parliament, meaning children in Scotland now have the same protections against assault as adults.

Equal protection is something our office has been calling for since 2004, and we’re delighted to see it pass into Scots law. Assaulting a child for the purposes of punishment should always be against the law, and our previous law was untenable in international human rights law terms.

We’ve been lucky to work with children and young human rights defenders who helped make this law happen, as well as adults from organisations in Scotland and beyond who have campaigned for it for several years.

What did the Children (Equal Protection from Assault) (Scotland) Act change?

While Scots law protects adults from all forms of physical violence, the Criminal Justice (Scotland) Act 2003 had provided a defence of justifiable assault of a child, which could be exercised where it was claimed a violent act against a child was for the purpose of physical punishment.

The Act involved:

  • the removal of this statutory defence, and
  • the removal of previous laws that provided similar defences.

Because of this, there’s now no form of violence that’s acceptable against a child but not an adult— people of all ages in Scotland are equally protected.

A:

A rule is statutory when it’s been officially written down in a law.

When someone doesn’t follow a statutory rule, then they are breaking the law.

What does the UNCRC say about equal protection?

The preamble to the United Nations Convention on the Rights of the Child (UNCRC) affirms that – precisely because of their physical and mental immaturity – children need special safeguards, including appropriate legal protection. Several articles reinforce the child’s right to physical integrity and protection of their human dignity, and specific rights that relate to protection from physical assault include:

Article 19

Article 19 requires a state to take all appropriate legislative, administrative, social and educational measures to protect a child from violence carried out by a caregiver.

This requirement covers all forms of violence – both physical and mental – and applies to violence carried out by any caregiver, whether they’re a parent, legal guardian or someone else.

Article 37

Article 37 requires that children are protected from torture or other cruel, inhuman or degrading treatment or punishment. In requiring this, it reflects article 3 of the European Convention on Human Rights (ECHR) and other international treaties.

What does the UN Committee on the Rights of the Child say about equal protection?

The UN Committee on the Rights of the Child is unequivocal— children’s right to protection from violence and to equal protection under the law means that states must enact legislation which prohibits – without exception – all forms of corporal punishment of children in all settings.

In its 2016 Concluding Observations, the Committee urged all areas of the UK – including Scotland – to prohibit corporal punishment as a matter of priority, and to repeal all legal defences of its use. It also urged all areas of the UK to promote both:

  • positive and non-violent forms of child discipline, and
  • respect for children’s right – held equally with adults – to human dignity and physical integrity.
A:

The UN Committee on the Rights of the Child is the body set up by the UN to monitor the progress that States make in keeping their human rights promises under the UNCRC. It’s made up of 18 independent experts on children’s rights from different countries.

What do international bodies say about equal protection?

The United Nations, the Council of Europe, and the European Union had repeatedly called on Scotland to honour its international human rights commitments to provide children with total protection from assault. However, successive Governments failed to do this.

The European Court of Human Rights has progressively condemned corporal punishment in a series of judgments against the UK since the 1970s.

Each time, the law had been amended only to meet the minimum requirement of the judgment, rather than to properly respect the rights of children.

Thanks to the passage of the (Equal Protection from Assault) (Scotland) Act, this is no longer the case in Scotland.