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The Earl of Mar and Kellie: My Lords, I also wish to add my support to the amendment, at least to the extent that I continue to believe that Scotland needs guidance about the matter. While such legislation cannot control every situation, at least most people would know what was permissible and eventually bring some pressure to bear on others.
I also believe that the amendment would give some guidance to the courts as to how to sort out the rights and wrongs of an incident brought before them. Principally, the courts have to decide whether it was violence rather than punishment and, if it was punishment, did the parent take reasonable or unreasonable action.
Lord Macaulay of Bragar: My Lords, at the Committee stage of this important Bill relating to children in Scotland I made some comments which directed people back to the Scottish Law Commission on the issue of punishment of children. The amendment that appeared at the Committee stage would have been unenforceable in the courts. I note with interest the new amendment, Amendment No. 1, which has struck the correct balance in that it has taken out the question of assault.
As I understand it, the amendment leaves the common law of assault unchanged but brings into the Children (Scotland) Bill the question of violence. It may be a distinction without a difference, but, as my noble friend Lady David said, the message is being sent out through the legislation to parents that they cannot abuse their children in any way, in particular striking with the methods which are detailed in subsection (2) of the amendment. The emphasis has now been changed. As I look at it, the common law of assault remains, but within the context of the Children (Scotland) Bill parents are told: "You can't be violent towards your child". Maybe the courts will have to determine the difference between being violent and assaulting someone, but violence is spelt out in the new amendment. I hope that it will find favour in your Lordships' House.
The original amendment was proposed by the Scottish Law Commission. With the greatest respect to the Scottish Law Commission and the Law Commission in England, I do not believe that everyone should kneel down when they make a pronouncement. We must look at it in its proper context. The amendment appears to meet
Lady Kinloss: My Lords, I support the amendment moved by my noble friend Lord Henderson. He explained the reasons and the need for it very clearly. ChildLine Scotland reported that a high proportion of the children who telephone identify physical punishment as their main problem. It also said that some of the children felt sad; they tried to find reasons for the emotional, as well as the physical, pain that they felt. Some felt that it must be their fault, although they could not understand why or what they had done to deserve such severe punishment. They often found the emotional pain harder to bear than the physical pain. The problem with emotional pain is that it is probably harder to detect. A few even said that they had reached the point where they no longer wanted to live. That is tragic. Surely these children must be listened to and somehow helped. A vast majority of the children are reported as saying that they just wanted the hurt to stop but did not want their families to split up. I support the amendment.
The Earl of Balfour: My Lords, I am extremely concerned about this amendment. I have given it a great deal of thought. Trespassing on railway property is one of the few cases for which trespass exists as an offence in Scotland. The reason for that protection under Scottish law is that it brought danger to the people who trespassed; it is not for any other reason. It is against the law in Scotland to trespass on railway or aircraft propertyand quite rightly.
What does a parent do if a child commits that offence on several occasions? That child must be punished. A child may deliberately run in front of traffic. In the old days, if the police caught you doing that, you usually received a cuff on the ear. You did not dare tell your father about it in case you got a cuff on the other ear. I would argue that it did not do us any harm. Let us remember that children today are not perfect. They need to be punished from time to time. There is, for example, a problem with drugs.
I am very unhappy about this clause for another reason. I do not want parents who get fed up with their children, and for no other reason, to be able to fall back on Clause 51 and ask the local authority to place the child under compulsory measures of supervision. There is that risk. The clause provides for compulsory supervision where the child,
The only alternative punishment available to a parent is to leave a child in the corner of a room facing the corner for several hours. That is far more cruel than is a good, hard slap across the backside with a soft slipper, or depriving the child of food. I am thinking back to my own childhood and that of many of my contemporaries. Those were the punishments that I disliked, because they left one with an awfully bitter taste in the mouth.
I realise the point of what was said. But where a child has deliberately put his or her life at risk or done something utterly stupid, we must give the responsible parent the power physically to punish that child in some way. Sometimes the alternatives to physical punishment can have a far more serious effect upon the child.
Lord Macaulay of Bragar: My Lords, before the noble Earl sits down, am I interpreting his remarks correctly? Is he saying that violence on the part of the parent is an essential ingredient for the control of the child?
Lord Young of Dartington: My Lords, I support this amendment. I put it to the noble Earl who just spoke that there is a considerable difference between the father whom he brought before us who gives a child a cuff across the ear, and the stepfather. I wonder whether the noble Earl would feel the same way and make the same remarks with such confidence about a stepfather. An important fact needs to be borne in mind by those who are against this amendment. The families of today are very different from the kind of families that existed in the past; and they are still changing at a rapid ratein the view of many of us, not in a favourable direction.
To go back 25 years, the great majority of children were brought up during their years of dependence by their natural parents. The proportion of children lucky enough to be brought up by their natural parents until they are 16 has fallen steadily and very fast in recent years. The proportion is now not much higher than 50 per cent. Soon, on the basis of the trends observed, only a minority of children will have the good fortune to be brought up until the age of 16 by both their natural parents together. It is a dreadful thought. It means that more and more children, although brought up by one natural parent (usually it is the mother, but sometimes the father) may have to put up with a series of step-parents and the like. Temporary relationships are becoming more and more common. The natural impulses and bonds that bind natural parents to their own children cannot apply with anything like the same force to those who are not the natural parents. Unfortunately we have heard too many stories in recent years about the abuse that children can suffernot so much from stepmothers, but from stepfathers, who are very much in evidence now in our society.
It is important that this House should recognise the fact that children are not now protected by natural impulses in the way that they once wereas well as the arguments that were put forward by other proponents of this amendment, and at least put it on record that we are against subjecting children to the kind of violence to which they can be subjected, and are most liable to,
Baroness Carnegy of Lour: My Lords, I shall be very brief. I was not able to be present at all at Committee stage, so I have not joined in this discussion. There is no question that the problem in Scotland is probably greater than it is in England and Wales. There is no question that there is still a lot of violence to children. We know that that violence goes on to affect the next generation. I know that from my own experience.
On the other hand, noble Lords talk about the relationship of ordinary parents to ordinary children. It is very important, given that we are not elected and when some of us are not as closely in touch with ordinary parents and children in all sorts of homes as we were or might be, not to suggest that legislation that includes a provision that is so far from what people understand and will be happy about is likely to work.
I have been trying to imagine how I would explain the amendment to ordinary parents of ordinary children in relation to what they are and are not allowed to do. It is possible to explain the present law on the question of assault, though I understand that will be repealed by this provision. I shall be interested to know whether my noble friend on the Front Bench feels that the amendment is sufficiently different technically from the last amendment to enable it to be more easily explained to parents.
I am not happy about the amendment. I cannot imagine how one will explain to parents that they must not hit their children with any "other object"what the object is will be discussed by the court. How can we explain "momentary pain or discomfort"? I am not happy about it. However, I am ready to be convinced and shall listen to what my noble friend says.
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