Clearing out the big cupboard in the offices of the Scottish Council for Civil Liberties (SCCL) I found a tawse – the school belt to you and me. I inquired why we had it and was advised ‘sentimental value’ as the exhibit had been successfully used by Norman MacEwan, SCCL Committee Member and lawyer, in the case of Campbell and Cosans V UK Government at the European Court of Human Rights. The tawse had been produced by Norman to show the judges exactly what children were punished with in school. I understand the reaction was visible horror.
This month marks the 30th anniversary of the conclusion of that case with the Court deciding on the payment of legal costs and expenses for the parents, Mrs Campbell and Mrs Cosans, and compensation for one of the children. It is a popular myth that this case was all about a child’s right not to be belted: in fact the case focused on the UK State failing to respect each parent’s wish that their child would never be belted in school.
At the time, there were no statutory provisions governing the use of corporal punishment in disciplining children and its use was a matter for the discretion of the individual teacher “subject only to the limits set by the common law and to any particular conditions in his contract of employment”. Yet domestic legislation required that pupils in Scotland were “to be educated in accordance with the wishes of their parents” which matched Article 2 of Protocol No. 1 of the European Convention on Human Rights.
In the 1960s, the Government had started the process of moving away from corporal punishment as an acceptable form of discipline by trying to change hearts and minds as well as practice. The Scottish Education Department, the Association of Directors of Education and the teachers’ associations jointly produced a booklet in 1968 entitled “Elimination of Corporal Punishment in Schools: Statement of Principles and Code of Practice” which stated that “until corporal punishment is eliminated its use should be subject to the following rules eg “should not be administered for failure or poor performance in a task”. In speaking to some teachers who trained in Scotland at that time, the existence of this Code was unknown plus the use of the belt was never covered in their training. So much for changing culture and practice!
Then the Secretary of State for Scotland appointed an independent committee of inquiry (the Pack Committee) to investigate indiscipline and truancy in schools. The Committee reported in 1977 and was of the opinion “that corporal punishment should, as was envisaged in 1968, disappear by a process of gradual elimination rather than by legislation”. A working group established by CoSLA in 1979 considered the introduction of alternative sanctions. The Court noted however “its continued use by teachers is apparently, according to a recent opinion survey, favoured by a large majority of Scottish parents and, according to the Pack Committee’s report, by pupils, who even prefer it to some other forms of punishment.”
During the Campbell and Cosans case, the UK Government made clear that it remained “committed to a policy aimed at abolishing corporal punishment as a disciplinary measure in Scottish schools, but took the view that that policy is best implemented by seeking to secure progress in this direction by consensus of all concerned rather than by statute.”
In 1983, the Court ruled that there had been a breach of Mrs Campbell and Mrs Cosans human rights as the UK State had failed to respect their right as a parent to ensure their children’s education and teaching was in conformity with their philosophical convictions, as guaranteed by the second sentence of Article 2 of Protocol No. 1 . Mrs. Cosans successfully argued that her son’s suspension from school, for nearly a whole year, violated his right to education, protected by the first sentence of the same Article. Her son was suspended after following his parents’ instruction not to accept the schools disciplinary code which included the use of the belt.
Although the UK had shied away from legal change, it realised it was the only way to deliver an agreed policy – banning the use of the belt in all State schools. It appeared to use the outcome of the Campbell and Cosans case as a catalyst for legal reform and formalised decisions already made by some local authorities eg Strathclyde Regional Council agreed corporal punishment would be abolished from August 1982. This Scottish case led to legal change across the UK. The Government led public opinion on the issue and did the right thing for children.
Fast forward 30 years and Scotland has been able to determine its own laws on the physical punishment of children since 1999. The Scottish Parliament’s first stab at legislative change came in 2003 when it chose not to ban the physical punishment of children but opted to define ‘justifiable assault’ by adults on children. Can you imagine our Parliament defining when it is OK to hit a woman or an elderly person? This has provoked international consternation and is out of step with other democratic nations eg nineteen countries in Europe now give children equal protection including Croatia (1999), Denmark (1997), Finland (1983), Germany (2000), Iceland (2003), Netherlands (2007), Norway (1987), Romania (2004) and Spain (2007). The next opportunity to amend the law will come with the forthcoming Children and Young People Bill.
Why when we have our own Parliament with full capacity to legislate, are we too timid to lead the way across the UK on legal change? The European Court pointed out in 1983 that “the education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young…”. Scotland is articulate on the necessity of reducing violence and that means changing culture and practice by education and sending a clear legal message.
We all need to ensure that hitting is never the solution and that whilst children need boundaries they do not need to be harsh to be effective. What we know from our history is that good intentions and guidance do not work – the law needs to be reformed to give a simple message that hitting children is wrong. Legal reform avoids current discussions with some adults about how hard and often you can hit and what constitutes an ‘implement’. Delivering blows to the head, shaking and the use of implements are not usually considered justifiable forms of discipline.
For those of you who wondered about how much the child was awarded by the Court for ‘material and moral damage’, it was £3,000 on 23rd March 1983. This is £550 more than Mr Napier was awarded by a Scottish Court in 2004, due to slopping out in prison. Breaching human rights causes the State money in so many ways and the human cost in the short and long term can be high and is avoidable. So let us hope that reflecting on this human rights case fires us with confidence and valour to do the right thing for children, and for the countless adults who argue that hitting children does not work, and settle for a Scotland that legislates to give children the same legal protection from assault as adults enjoy.