Current Scots law, similarly to the rest of the United Kingdom, includes a legal defence of 'justifiable assault', or reasonable chastisement.

This means that what would be otherwise be considered assault of a child by an adult responsible for their care can in some circumstances be found justified on the grounds it was intended as physical punishment.Children and young people, therefore, do not enjoy the same legal protection against assault as adults.

On 24 October 2017 John Finnie MSP lodged a proposal for a bill to give children equal protection from assault by prohibiting the physical punishment of children by parents and others caring for or in charge of children. The proposed legislation would remove the justifiable assault defence from section 51 of the Criminal Justice (Scotland) Act 2003 and the defence of reasonable chastisement from common law, and so give children equal legal protection against assault as adults. 

We responded to the public consultation on John Finnie MSP’s Proposed Children (Equal Protection from Assault) (Scotland) Bill expressing our full support for this change to the law. Read our consultation response.

Annexed to our consultation response is the Opinion of Senior Counsel on the legality of Scots law on the physical punishment of children, written by Janys Scott QC on the instruction of the Children’s Rights Strategic Litigation Working Group on Equal Protection. Clan Childlaw coordinated this Working Group which considered the current law on the physical punishment of children in human rights terms and how a case involving this law might be viewed by our courts today. At issue in particular are Article 3 (protection from torture or inhuman or degrading treatment or punishment) and Article 8 (protection of private life, including physical and moral integrity) of the European Convention on Human Rights.

The Scottish Government supports the Bill.

The Bill passed Stage 3 on 3rd October 2019. You can read the Bill and follow its passage through the Scottish Parliament here