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Baroness Faithfull: I rise to support the noble Lord, Lord Henderson and to make three points. He has already made the first point that children who have been physically maltreated, or beaten through malpractices on the parent's part, pass that on when they are grown up so that it passes from generation to generation, and may become either worse or better with each generation. Therefore I support the noble Lord in that respect.

My second point is this. Where you are caring for children, whether your own or other people's, the vulnerable children among them suffer greatly when physically chastised. I believe that we do not realise that for a sturdy little person a whack does not really go too deep. However, for a vulnerable child it goes very deep and lasts a long time. It is not possible to distinguish between the vulnerable and the robust. Therefore, I support the amendment because I believe great damage can be caused to vulnerable children, particularly those in care.

My third point is that this amendment makes it clear both to the community and the people at large, as well as those who have care of children, exactly what the legal position is. For those three reasons I support the noble Lord, Lord Henderson.

The Earl of Mar and Kellie: I also rise to support the amendment proposed by the noble Lord, Lord Henderson. In common with the two Members who have spoken, I continue to believe that the public are keen to receive guidance from the legislation. The clear

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message that smacking with an open hand is acceptable but that hitting, beating or causing long-term pain is not will be welcomed in Scotland.

Lord Macaulay of Bragar: I find this a very confusing amendment if I may say so with the greatest of respect to the Members of the Committee who have put their names to it. We seem to be indulging in negative law rather than positive law. The law in Scotland is that you are not entitled to assault anybody and we have had at least two cases within the past two years where the courts have disagreed, but it is all a question of degree and circumstance. If a parent assaults a child, the parent is guilty of assault, pure and simple.

The courts have to interpret the law. The amendment in its present form is negative because it sets out what is not to be the offence. It does not set out what is an offence. It is an offence to assault your child, whether he is one, 10 or 18.

The amendment contains the phrase,

"the purported exercise of any parental right". I do not know what the word "purported" means. You are either a parent or you are not, and you have a right to look after your children.

There is one aspect of the amendment I do not really understand. I have discussed it during the course of the day. I was told in one of the briefings—I cannot remember from where it came—that the proposal did not stop a parent smacking a child. If that is right, I am sure the noble and learned Lord the Minister, in his time as Lord Advocate, will know very well that parents who shake a child of six months, or slap a child of six months, kill the child. Therefore if the objective is to create some degree of distinction between using a weapon on a child—a stick, a belt or other object of whatever description—and smacking a child, the provisions do not achieve that objective. Asking the courts in Scotland to interpret this amendment in the course of hearing evidence about assault would place a heavy burden on them.

Another matter troubles me. Perhaps the noble Lord, Lord Henderson of Brompton, can advise your Lordships whether I am right in saying that this amendment does not excuse a smack. I think it was said on Second Reading—I am sure that the Minister agrees—that there is no such a beast as a safe smack. If you hit a child, you hit a child. How do you regulate the quality of a smack? Whatever the Scottish Law Commission may say about there being a safe smack, I do not accept it.

Lord Henderson of Brompton: May I interrupt the noble Lord for one moment? I would agree with his view that a smack is a smack. There is no question about that, but it is very much better to have a limitation such as the Law Commission is proposing and to allow only a smack and not the use of something that assists a smack such as an implement of some sort or another. The reason I make this distinction is, in the first place, that if you impose a rule that all smacking of any sort, whatever degree of danger it may import, shall be prohibited, it is exceedingly difficult to enforce; secondly, it would be exceedingly difficult to

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distinguish between what the noble Lord calls a "slap leading to death" and a slap that is almost equal to a stroke.

Lord Macaulay of Bragar: I thank the noble Lord for that exhortation. However, I took up the words that he used. I hope I am not doing him any disservice. He used the words "a safe smack" which is used in the Scottish Law Commission report. Speaking as a parent, I just do not believe there is such a thing. You do not hit children—pure and simple. I do not think the amendment really takes us anywhere.

Turning to the issue of assault, you either assault your child or you do not assault your child in the law of Scotland. We have a very open approach to assault in Scotland. We are not hidebound by statute like the English and Welsh. They get themselves into terrible confusion about actual bodily harm and grievous bodily harm. We have quite a simple system: you either assault somebody and hurt them or you do not. No problem. I do not know the Government's view of the amendment, but, for example, how is a judge to interpret the words of subsection (1)(b) which states:

"in such a way as to cause, or to risk causing
(i) injury; or
(ii) pain or discomfort lasting more than a very short time. Let us imagine an eight year old child coming into court; children sometimes have no concept of time, and a belt across the face is a belt across the face. Will the judge say, "Well, tell me, Jimmy, how long did you feel the pain? How long did you feel the discomfort?" A child will not be able to answer that. I think that the amendment as it stands leads to confusion and will never be properly interpreted in the courts. At the moment, as I have said, we have two conflicting views. The mens rea is the guilty intent to cause injury to the child. I can see no reason why the law of Scotland should be interfered with by an amendment such as this, no matter how well meaning. I certainly would not support the amendment in its present form.

4.15 p.m.

The Earl of Balfour: I should like to illustrate the other side of the problem: the odd child who really puts his life at risk. I heard rather an interesting case only a short time ago of a child of eight or nine years of age who started to unscrew a 13-amp wall plug—for fun! And the child had done it twice before. The mother happened to be stirring something with a wooden spoon and in desperation struck the child jolly hard with the spoon. You have to take action occasionally to stop this sort of thing. What are you going to do with a child who is determined to dash across the road in front of a car? If you hit a child with a rolled up newspaper it does not do any harm but it very often stops the child. One really must be able to do that. We have to be very careful what we put into law. I very much support what the noble Lord, Lord Macaulay, said.

Lord Fraser of Carmyllie: The noble Earl, Lord Mar and Kellie, indicated that it was desirable to clarify the law in Scotland. I do not believe, for the reasons that

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have been given, that that would be the effect. We want to start clearly at the beginning by appreciating what the new clause, even if it were to be adopted, would not do. What it would not do is to make it unlawful for a parent in any circumstances to take his or her hand to the child. My noble friend Lady Faithfull gave the example, saying that there might be some sturdy young body in respect of whom a smack would do little or no harm, but on the other hand there might be a more vulnerable child on whom it might have a longer-lasting effect. The new clause does not identify any such distinction between the subjective character or nature of the child.

As we made clear in another place, the Government have some sympathy with the intention behind the new clause. There is nothing between Members of the Committee concerning the view that no violence to children should be justifiable under the guise of punishment, but I am concerned that there are dangers in seeking to amend the existing law in the way proposed. The law as it stands, as the noble Lord, Lord Macaulay, indicated, offers the law of assault. I believe that both statutory law and common law offer sufficient protection to children from assaults by parents, teachers or others who have charge of children.

The new clause would place unnecessary constraints on the power of the courts to take all the circumstances of each case into consideration. This has proved to be a key factor in recent case history. There are many things a court must take into account in determining if punishment is reasonable: for example, the age, the sex, known disabilities or weaknesses, as well as the nature and the context of the punishment, the manner and the method of its execution, its duration and its physical and mental effects. The proposals in the new clause would limit the court to only two—whether an implement was used and whether there was injury, pain or discomfort lasting more than a short time. I fear that this might force a court to come to the decision that it did not feel justified in all the circumstances of the case. It might lead to a court finding against a parent who administered a light tap with some inoffensive implement, while someone giving a much more severe blow with the hand might escape censure.

As was made clear in another place, there is also some difficulty in relating the new clause to the existing law. As the noble Lord, Lord Henderson, rightly indicated, the new clause is based on one of the draft clauses attached to the Scottish Law Commission's report on family law. It would appear from that report and from the letter of 25th May of the Scottish Law Commission, to which the noble Lord referred, that the Scottish Law Commission takes the view that when a parent administers corporal punishment to a child, this constitutes a crime of assault but there may be a defence to it if the punishment can be established as reasonable. The new clause therefore seeks to restrict that defence by indicating that it is not to be available in certain circumstances. However, with respect to the Scottish Law Commission, this seems to us the wrong approach. Where a parent administers corporal punishment to a child, the law—I would suspect that this would be in accordance with the commonsense of most people—does not regard the parent as committing a crime at all.

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That is because the law does not regard a parent as having the necessary 'dole' in Scots law, or evil intent, to commit an assault. Reasonable punishment is not therefore simply a defence; it does not amount to an assault at all. It is only where the punishment becomes excessive that it becomes "assault".

In the Scottish case of Gray v. Hawthorne, which was reported in 1964 in our justiciary cases at page 69, it was said that only if there has been an excessive punishment over what could be regarded as an exercise of disciplinary powers can it be held to be an assault. In other words, the question in all such cases is whether there has been dole on the part of the accused—that is, the evil intent which is necessary to constitute a crime by the law of Scotland. With respect of the Scottish Law Commission, I certainly understand that to be a correct statement of the law.

I turn now to other deficiencies in the new clause. The courts would have some difficulties in interpreting subsection (1)(b), under which a parent would have no defence if the child was struck:

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