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Criminal Justice (Scotland) Act 2003

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This is the original version (as it was originally enacted).

51Physical punishment of children

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(1)Where a person claims that something done to a child was a physical punishment carried out in exercise of a parental right or of a right derived from having charge or care of the child, then in determining any question as to whether what was done was, by virtue of being in such exercise, a justifiable assault a court must have regard to the following factors—

(a)the nature of what was done, the reason for it and the circumstances in which it took place;

(b)its duration and frequency;

(c)any effect (whether physical or mental) which it has been shown to have had on the child;

(d)the child’s age; and

(e)the child’s personal characteristics (including, without prejudice to the generality of this paragraph, sex and state of health) at the time the thing was done.

(2)The court may also have regard to such other factors as it considers appropriate in the circumstances of the case.

(3)If what was done included or consisted of—

(a)a blow to the head;

(b)shaking; or

(c)the use of an implement,

the court must determine that it was not something which, by virtue of being in exercise of a parental right or of a right derived as is mentioned in subsection (1), was a justifiable assault; but this subsection is without prejudice to the power of the court so to determine on whatever other grounds it thinks fit.

(4)In subsection (1), “child” means a person who had not, at the time the thing was done, attained the age of sixteen years.

(5)In section 12 of the Children and Young Persons (Scotland) Act 1937 (c. 37) (cruelty to persons under sixteen)—

(a)in subsection (1), the words “assaults,” and “assaulted,” are repealed; and

(b)subsection (7) is repealed.

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